Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDQE DOUGLASS BOAROMAN FIRST DEAN OF THE SOHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF1175.B12 A treatise on the law of benefit socfetl 3 1924 019 346 984 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924019346984 A TItEATISE ON THE LAW OP BENEFIT SOCIETIES AND INCIDENTALIiY OF LIFE INSUEANCE. FEEDEKICK H. ^ACON, 0/ the St. Louis Bar. ST. XOTTIS: THE F. H. THOMAS LAW BOOK CO. 1888. Entereil aceordlng to Act of Congress, In the year 1888, hj FKEDBBICK H. BACON, IB tbe Office ol the Libxulan of Congiess, at Wasliliigtoii. PRFSB or MIXON-JONtS PRINTINO OOk, 910-913 PINE STREET. THIS VOLUME IS ArraCTIONATBLT INSCRIBSD TO MT BBOTHSB, COL. EDWAED BACON, or Hn^s, micbigah; WH08B INTBGBITT, (XBAB INTEIXBCT ASH STTJDIOUS HABITS HAVX MASS HIM A SUCCESSFrrL I.AWYBR. I SPENT A HAFFT FBSIOD OV MT LITB SBASmO XAW IN HIS OFFICII, AND THB UBMOBT OF HIS XXAMFLB AND FBBCBFTS wnX KVKB BB CHERISHES. F. H. B. (iii) PREFACE. The secret benevolent and beneficiary orders, or bene- ficiary societies, which are both social clubs and life insur- ance companies, have multiplied amazingly during the last twenty years. Branches of these organizations are now found in nearly every village in the land and in the larger cities the lodges are numbered by scores and even hundreds. They have characteristics in common with ordinary clubs and the familiar fraternities, the Masons and Odd-fellows. The litigation connected with these societies is novel and important. It embraces two classes of cases ; the first in- volving the discipline of members and their personal lia- bility for the community debts ; the second includes the still more important questions relating to the rights of ben- eficiaries, the decision of which often requires an applica- tion of the principles of the law of life insurance. The numerous cases, decided during the last ten years, by the courts of last resort of the several States and the Federal courts, are not collected or discussed in any legal text- book, consequently they are unfamiliar to most lawyers, who do not realize their extent and value. Cases that have arisen in my own practice have convinced me of the need of a treatise on this subject, one in which the rights and liabilities of members of the beneficiary orders and of their beneficiaries should be considered in close connection with the law of life insurance proper. This need I have tried to supply. The work covers the entire subject of life insurance and includes all cases de- cided up to date. (V) VI PREFACE. The extent to which I have succeeded must be determined by the profession. Although I make public the results of my labors with diffidence, I am content to do so without apology other than this brief explanation. My work must speak for itself — its value must be measured by the merit its use may develop, its faults could not be lessened or ex- cused by anything I here might say. I have generally cited the cases, in addition to a reference to the Tegular reports, by the volume and page of the Amer- ican Decisions, American Reports and the National and Co- operative Systems of Reporters, if re-reported. I have not, however, given all of these references each time the case is referred to. The full citations may be found by consulting the table of cases which precedes the text. I wish to here acknowledge my obligations to P. Wm. Provenchere, Esq., of the St. Louis bar, who carefully read the work in manuscript and materially aided me with valu- able suggestions. Also to Hon. John Frizzell, of the Nashville, Tenn., bar, who has read the proofs and has given me the benefit of his ripe experience. Fbedebick H. Bacon. St. Lonis, October, 1S88. TABLE OF OONTENTa CHAPTER I. INTRODDCTORT. DEFINITION, HISTORY AND EXTENT OF BENEFIT SOCIETIES: ORIGIN AND GROWTH OF UFB INSURANCE. Pasxs. § 1. Nature of Benefit Societies . . . . 1 S. They are Social Clubs . . . ... 3 5. They are Business Organizations . ... 3 4. Eindred Societies ....... 3 6. Ancient Origin of Benefit Societies . . 4 €. Histoiyof Guilds ....... 4 7. Decay of Guilds, their Successors .... 8 8. History of Clubs ....... 8 9. Analo^es between Ancient and Modem dubs . . 11 10. The E"gi'ih Friendly Societies . . . . .13 11. The American Beneficiary Orders . . . .15 18. The Secret Fraternities ...... 17 IS. Allied Organizations . . . . . .18 14. Characteristics in Common . . . . .18 15. Definitions of life Insurance . . . . .19 16. The English Definitions ...... 19 17. American Definitions . . . . . .80 18. Various Classes of Life Insurance . . . .81 19. Assurance and Insurance . . . . .82 20. History of Life Insurance . . . . .83 81. An Early English Case ...... 84 Slo. First American Case . . . . . .24 23. Method of Conducting Business . . .. .86 83. Analogies between Benefit Societies and Insurance Com- panies ....... 87 31. Early Beneficiary Life Insurance Cases in the United States. i9 35. Definition of Terms Used in Insurance . . 89 (Yii) TIU TABLE OF CONTENTS. CHAPTER II. ORGANIZATION, POWERS AND LIABILITIES. Faobs § 26. Benefit Societies may be Voluntary Associations or Corpo- rations ........ 31 31 3Z 32 3» 34 36- 37 3T 3» 3» 40 40 42 27. Legal Status of Voluntary Associations Uncertain 28. Members Voluntary Associations sometimes not Partners 29. When Societies are Partnerships 30. Cases where no Partnership was Held to Exist 31. The Case of Ash v. Guie ..-■... 32. Cases where Associations were Held to be Partnerships 38. The Declaration of Collyer on Partnership 34. The Principle Stated by Another writer . . 36. A General Rule ...... 86. Liability and Status of Members: Dissolution 87. The Effect of Articles of Association . 88. Powers of Voluntary Associations and of the Members 39. Jurisdiction of Equity ... 40. Voluntary Association may be Estopped from Showing its True Nature ...... 41. Defective Organization of Corporation 42. Benefit Societies Incorporated under Special Acts . 43. Greneral Incorporation Laws .... 44. Benefit Societies as Charities .... 45. English Friendly Societies not Charities, nor Assurance Com panies ....... 46. Incorporating under General Laws 47. Corporate Powers ..... 48. The Charter the Source of Corporate Powers . 49. The Modem Idea of Corporations 60. Exemption of Benevolent Societies from Insurance Laws 61. Status of Benefit Societies Considered by the Courts . 62. Conclusion : Benefit Societies are Insurance Organizations 63. Exempting Statutes ..... 64. Liberality of Exemption in some States 66. Limitations on Business in Certain States 66. Lite Insurance Business as now Conducted in the United States and Canada 67. Dissolution of Voluntary Associations 68. Dissolution of Incorporated Societies 69. When Equity will Interfere 60. Torfeiture of Corporate Franchises 4» 43 44 44 45- 47 48 60 ol 51 5$ 53 62 63 64 65. 67 67 68 69 6» TABLE OF CONTENTS. IX CHAPTER III. GOVERNMENT AND MEMBERSHIP: BY-LAWS. 72- 73 61. Flan of Organization of Benefit Societies 61a. Element of Property Rights of Members 62. Common Characteristics of Corporations and Voluntary As sociations ...... 63. Membership Governed by Articles of Association or Charter. 64. Majoritycan Bind Minority .... 65. Limitation on Action of Majority 66. Mnst act at Propftly Called Meeting 67. Meetings of Association or Corporation : Notice of . 68. Jurisdiction of Grand and Supreme Lodges . 69. Articles of Association, or Constitution and By-Laws, RegU' late Rights and Powers of Officers and Members . 70. An Early Masonic Case ..... 71. The Odd-fellows' Case, Austin v. Searing: Power of Grand Lodge of Voluntary Association over Subordinate Lodges, 72. Other Cases Involving same Question : The Element of Incor^ poration . . 73. Distinction Between Social Organizations and those Furnish' ing Insurance Indemnity .... 74. Supreme, Grand and Subordinate Lodges a Single Organiza' tion ....... 75. Rights of Minority ..... 76. Analogy Between Lodges and Churches 77. Property Rights of Religious Societies, how Determined 78. Benefit Societies Doing a Life Insurance Business are like Other Life Insurance Corporations . . 79. By-laws: Definition of ..... 80. By Whom and how Made : Repeal : Vested Rights 81. Binding upon all Members : All are Presumed to Know them 82. Requisites of Valid By-laws .... 83. Must be Consistent with Charter ... 84. Must not be Contrary to Common or Statute Law 85. Must be Reasonable ..... 86. Construction of By-laws Question for the Court 87. What is Bad as a By-law may be Good as a Contract Exception ... . . 88. Enforcement of By-laws ..... 89. Distinction Between Voluntary Associations, where no Property Right is Involved, and Corporations in regard to By-laws ....... 105. 73 74 75. '76. 7G 76 77 78 79 80 88- 89 91 92 92 94 94 95 95 96 97' 98 9',) 102 103 103 TABLE OF CONTENTS. PAQES. 90. Societies have a Right to the service of their Members . 106 91. The Articles of Association, or Charter, Forms a Contract Between the Society and the Members 92. By-laws Relating to Sick Benefits 93. Construction of By-laws . . • • • 94. Proceedings to obtain sick Benefits: Right of Members to Resort to Civil Courts . . • ■ 95. Expulsion of Members . . . • • 96. Same Rules Apply to Incorporated and Unincorporated Societies . . • • • . • 97. Power of Corporation to Expel Members where Charter is Silent: Grounds for Expulsion 98. English Rule as to Voluntary Associations 99. When no Power to Expel Exists 100. Power to Expel belongs to Body Generally: Cannot be Dele gated ....... 101. Procedure for Expulsion: Notice 102. Procedure Continued : Charges: Trial. 103. Charges must be Sufficient 104. Expulsion of Members of Subordinate Lodges of a Benefi- ciary Order ...... 104a. Acquittal: Appeal ..... 105. Courts will not Interfere if no Property Right is Involved 106. Courts will not Inquire into Merits of Expulsion 107. When Injured Member can Resort to Courts y 108. The Jurisdiction of Equity 109. The Remedy of Mandamus: What the Court will Consider 110. Presumption of Regularity of Expulsion Proceedings 111. Withdrawal of Member of Voluntary Association 112. Personal Liability of Members of Unincorporated Society 113. Personal Liability of Members, how Avoided . 114. Individual Liability for Sick or Funeral Benefits 115. Liability of Person Contracting in name of Voluntary Asso ciation ....... 116. Summary of Principles Stated in this Chapter CHAPTER IV. OFFICERS AND AGENTS. 117. Associations and Corporations Act through Agents . , 149 118. Subordinate Lodges both Principals and Agents . . 160 119. General Principles of Law of Agency . . . iso 120. When General Engagements of Clubs are binding on their Members •-..... 160 107 108 110 110 113 114 114 116 116 116 117 119 124 125 132 133 133 135 136 138 139 139 140 144 144 145 146 TABLE OF CONTENTS. XI Paoes. $ 121. Officers and Committees are Agents . . . .161 122. Presumptions of Law 'ConcerniTig Members . • . 152 123. When Judicial Powers cannot be Conferred . . .152 124. Power of Amotion of Officers, who has . . . .153 125. Authority of Officers and Agents .... 153 126. Agents of Corporations . . . . . .155 127. Officers of Corporations are Special Agents . , . 156 128. Agent Contracting in name of Irresponsible Principal . 157 129. Agent Acting in Excess of his Authority . . .168 130. Charter or Articles of Association ^Fountain of Authority of Officers, Agents and Committees 131. Ilduciary Belation of Officers and Directors . . 132. Discretionary Powers cannot be Delegated. 133. Officers and Agents of Benefit Societies 134. Powers and Authority of Directors 135. Formalities to be Observed by Agents . 136. Distinction as to Matters relating to Internal Management 137. Execution of Insurance Contracts 138. Acts and Meetings of Directors and Committees 139. Record of Proceedings of Meetings of Directors Need not be Kept ....... 140. Powers of President . . . . 141. Of Vice-President ..... 142. Of Secretary ...... 143. Of Treasurer ...... 144. Dual Capacity of Subordinate Lodges of an Order . 146. Officers and Committees of Benefit Societies are Special Agents ...... 146. Benefit Societies in Law are Mutual Life Insurance com panies ....... 147. DifEerence between Powers of Agents of Stock and those of Mutual Companies ..... 148. Authority of Subordinate Lodges when Acting for Grand or Supreme Lodges ..... 149. Have Subordinate Lodges the Characteristics of ordinary Life Insurance Agents .... 160. To what Extent can Local or Subordinate Lodges Bind the Superior Body ...... 151. General Rules of Agency Apply to Agents of all Kinds of Companies ...... 152. Authority of Life Insurance Agents 153. The Modern Doctrine ..... 164. The Contrary View ..... 155. The GeneralEule Unimpaired .... 166. Dealings with Agents of Mutual Companies . Xll TABLE OF CONTENTS. PAGES- § 167. MembeTShip in Mntaal Benefit Societies . . . li)2' 168. The Correct Doctrine as to tlie Authority of Insurance Agents Stated in Certain Cases . . . 192- 169. How far Knowledge of Agent Binds Principal 194 160. Notice to Agents . . - • 1^6- CHAPTER V. NATURE AND SUBJECT-MATTER OF CONTRACT: APTER EN- ACTED LAWS. $ 161. Contract of Benefit Society with Members, where Found . 198- 162. Is one of Insurance ...... 203 163. A Life Insurance Contract is not Strictly one of Indemnity. 206 164. Is Executory and Personal . . . 208-' 165. Is Aleatory .... . . 2C3 166. Life Insurance Policies are Valued Policies . . 209 167. Endowment Insurance is Life Insurance . . . 209 168. Benefit Societies Restricted as to Beneficiaries . . 210 169. When Contract is Executed, Society may be Estopped . 212 170. Liberality of Construction of Charter by some Courts 212- 171. Contracts of Mutual Companies where a By-law has been Violated ....... 213 172. Insurance Contract Need not be in Writing . 215 173. What Constitutes Perfect Parol Contract of Jnsnrance . 216 174. Informal Execution .... 217 175. Lex loci and Lex fori ..... 219- 176. Stipulation in Policy cannot Avoid'Operalaon of Statute 222 177. Interpretation of Contracts of Insurance . . . 223- 178. Interpretation of Contracts of Benefit Societies . . 226 179. Construction when Language is Ambiguous . . 226 180. Contracts of Mutual and Stock Companies Construed Alike. 230- 181. Other Papers part of Contract, when .... 231 182. The same Subject: Other Illustrations . . . . 233. 183. Reference in PoUcy to other Papers must be Plain to make them a part of it . . . . 004 184. What Constitutes the Contract of Insurance . 236- 185. After Enacted Laws of Benefit Societies Generally Bind their Members • • . . . 186. An Extreme Case ... 187. The Better View: After Enacted Laws must not Affect Vested Rights • ■ . . 238 188. The Subject Discussed by the Supreme Court of Alabama . 240 236 237 TABLE OF CONTENTS. Xlll CHAPTER VI. APPLICATION, WAKRANTY, EEPRESENTATION AND CONCEAL- MENT. Pages. ^ 190. Insurance Contract Result of Proposal and Acceptance . 245 191. Difficnlties in Construing Language of the Policy Beferring to Uie Application ... .215 193 Early Interpretation Contrasted 'with Modem Construction . 246 193. Statutes on the Subject . . . .248 194. Warranty Defined . . . .249 195. DifiBcoI^ of Determining what Amotinta to Warranty . 252 196. Difference between Warranty and Bepresentation . . 253 197. Breach of Warranty Avoids the Contract . . . 256 198. Warranties not FaTored at Law; Strict Construction . 256 199. Warranty never Created by Construction . . 25S 200. Must be £zpress ...... 260 201. Affirmative and Promissoiy Warranties . , , 2dl 20'2. Constmction of Warranties must be Seasonable . . 262 203. Bevlew of Bules of Construction . . 263 204. Where Partial or no Answers are made to Qaeations . . 269 205. Where Answers are' not Besponsive . . . .271 205a. Qualified Answers ..... 272 206. Bepresentations ..... . 273 207. Material and Immaterial Bepresentations . . 274 20S. Affirmative and Promissory Bepresentations . . .274 a09. False Bepresentations Avoid Contract only when Material . 27S 210. Immaterial whether False Bepresentation is Intentional or Accidental . . .... 279 211. Materiality of Bepresentation question of Fact . 2S1 212. Answers to Specific Questions Alirays Material . . 282 213. Bepresentations to be Material need not always be of Facts Belating Directly to the Bisk ..... 283 214. Bepresentations need only be Substantially True : Good Faith of Applicant .... 286 215. Understanding of Applicant as to Efect of False Answers . 293 216. Answers to Questions in Applications for Membership in Benefit Societies Generally not Warranties but Bepresen- tations ...... . 293 217. Concealment ....... 297 218. Concealment of Material Fact 'will Avoid the Contract . 2;)S 219. Questions of Knowledge, Intent and Materiality are for Jury. 299 220. No Concealment when Facts are Unknown to Applicant: Difference between Bepresentation and Concealment . 300 Xiv TABLE OF CONTENTS. PA0E8> { 221. Error or Fraud of Agent in preparing Application . . 30(V 222. When Authority of Agent is known to Applicant . . 302 223. Answers to Eeferee: to Medical Examiner : Position of Lat- ter 306 221. Bnles of Construction in Particular Cases . . . 310 226. Age. ........ 310 226. Whether Applicant is Married or Single . . .311 227. Eesidence ....... .312 228. Occupation ....... 313- 229. The Dwight Case . . . . . .315 230. Answers in Begard to Parents, Relatives, etc. . . 319 230o. FamUy Physician . . . . .319' 231. Habits : Use of Intoxicants, Liquor, Opinm, etc . . 322 232. Good Health . . .... 325 233. Latent Diseases Uhknown to Applicant . . . 327 234. Disease ........ 32P 235. Accident or Serious Injury . . . . .33 CHAPTER Vn. DESIGNATIOIT OF BENEFICIAEY: INSURABLE INTEBEST. , $ 236. Benefit of Beneficiary Association is Paid to a Person Des- ignated hy the Member, or by the Laws of the Society . 336 287. Member has no Property in Benefit but only Power to Des- ignate Beneficiary ...... 336 238. This Power may be General or Special .... 341 239. Execution of Power must be in Compliance with Terms of Instrument Creating it .... . 341 240. Equity Sometimes Aids Defective Execution . . . 343 241. Consequences of Failure to Execute Power . 344 242. Designation of Beneficiary Sometimes Condition Precedent of Society's Liability ...... 347 243. When Designation of Beneficiary Lapses . . . 348 244. Limitations on Power, Restricting the Designation to Cer- tain Classes ....... 352 245. The Same Subject: A more Liberal View . 357 246. Unless Contract or Statute Forbids, Choice of Beneficiary is Unlimited . . .... 359 247. Liberal Construction of Charter and By-lairs: Lex loci . 359 248. Insurable Interest ...... 860 249. The Same Subject: Wagering Policies . . . 363 250. The same Subject: Relatives: Creditors . . . 367 251. General Rule ••••... 372 TABLE OF CONTE\-XS. XV FAexs. § 253. The Doctrine of Insarable Interest as Applied to Contracts of Benefit Societies ...... 37a S53. Policy or Designation of Beneficiary Valid in its Inception Bemains so ...... . 37S 254. Lawf alness of Designation of Beneficiary a Question of Con- struction ... ... 374- 255. Roles of Construction in Cases of Designation of Beneficiary. 376 aS6. Family ........ 37$ 257. Children ........ 882 253. Orphans ....... . 33& 259. Widow ........ S*' 260. Heirs ........ 38t> 260a. Relatives ........ 390 261. Dependents . . . . . .391 262. Legal Bepresentatires: Devisee: L^atee . , . 395 363. Ambiguous Designation: "Estate" .... 396 264. SeTcral Beneficiaries: Construction .... 399 265. Incorporated and Unincorporated Benefit Societies: Ultra Vires .... ... 401 CHAPTER Vm. CONSUMMATION OF CONTRACT: INCOMPLETE CONTRACTS: JURISDICTION OF EQUITY TO REFORM OR CANCEL. § S66. To Complete Contract of Insurance N^otiations must be Concluded ....... 403 267. Application mtist be Accepted to make a Contract . . 405 268. Froposal may be withdrawn at any Time Before Acceptance 406 S69. If the Foli^ be Di&rent from that Applied for it is not Binding upon the Company nstU Accepted by the Appli- cant ........ 407 ^0. Delay in Acting upon an Application will not Amount to Acceptance: Company not Bound to Accept . 408 271. Company may be Boimd although Application has been Rejected or not Acted on .... . 410 273. When Contract of Insurance becomes Complete . . 410 273. The Same Subject: Contract may be Complete without De- Breiy of the Policy ...... 413 274. Fraudulent Delrrery of Policy . ... 416 875. After Contract is Complete Changes in Risk Immaterial . 416 276. There may be a Conditional Delivery of Policy . .417 277. Unconditional Delivery of Policy by Agent in Yiolation of iBStmctions ....... 418 XVI TABLE OF CONTENTS. PAGES. 278. Court of Equity can Correct Mistakes in Insurance PoKcies 421 279. Wlien Equity will Relieve if Agent has Acted in Bad Faith 424 280. Or if the Policy does not Conform to the Application . 428 281. Or if the Errors are Manifest . . . . .429 282. Reasons for Refusal to Interfere .... 429 283. No Relief when Legal Efiect of Plain Terms was Misunder- stood ........ 431 284. Application of foregoing Principles to Benefit Societies . 431 285. Jurisdiction of Equity to Decree Cancellation . . 433 236. The Same Subject: Application to Benefit Societies . . 438 287. The Same Subject: Cancellation After Loss . . , 439 288. General Doctrine as to Interference of Equity Stated . 440 CHAPTER IX CHANGE OF BENEFICIARY: ASSIGNMENT. 289. The Subject of this Chapter . . . .441 290. Appointments under Powers, when Revocable . . 443 291. Designation of Beneficiary is an Act Testamentai7 in its Character ....... 443 292. Vested Rights of Payees in Life Insurance Companies ■ . 444 293. Opposing Authorities ...... 446 294. Wife's Policy . . . . . .446 295. When the Policy cannot be Assigned or the Beneficiary Changed ....... 448 ■296. When the Policy has not Passed out of Control of Party Effecting it ...... . 449 ■297. Assignability of Life Insurance PoHcies . . . 452 298. Assent of Insurer to Assignment .... 452 299. Effect of Assignment ■•.... 453 500. Assignment After Loss ...... 455 301. Assignment by Wife of Policy on Husband's Life: WAenWife Dies before the Husband: Rights of Creditors of Wife ' . 455 -802. The Question of Insurable Interest as Affecting the VaUdity of Assignments of Life Policies .... 459 303. Validity of Assignments how Determined, Amount of Re- covery by Creditor and Assignee .... 464 304. Distinctions between Certificates of Beneficiary Societies and Policies of Life jlnsurance in Respect to Assignment or Change of Beneficiary . . _ _ ^gg 305. Development of the Law Concerning Changs of Beneficiary. 468 306. Present Doctrine ... .1-0 . 472 -307. Change of Beneficiary must be in Way Prescribed by the Laws of the Society . . ^ ^ ... TABLE OP CONTENTS. XVll Pages. 808. The Opposing View . . . . . .477 309. When an Attempted Change of Beneficiary becomes Com- plete ........ 481 310. Jurisdiction of Equity In Aid of Imperfect Change of Bene- ficiary . . . . .483 311. Change of Designation Gtovemed by same Rules in Bespect to Beneficiary as Original Appointment . . 486 312. Bights of Creditors in Benefit . . . .486 CHAPTER X. CONDITIONS WHICH AVOID THE RIGHT: PERANCE, ETC. SUICIDE, INTEM- § 320. Liability of Insurer under an Insurance Contract may be Conditional ....... 490 321. Contracts of Benefit Societies and Ordinary Life Insurance Companies Contrasted . . .491 322. Scope of this Chapter ....;. 492 Condition as to Future Conduct when Binding . . 493 Restrictions on Travel or Residence .... 496 Change of Occupation to one more Hazardous or Prohibited. 499 Intemperance ....... 600 Death from Specified Causes may Avoid the Policy . . 603 Intoxicants ....... 604 Suicide ........ 606 323. 324. 326. 326. 327. 328. 328a, 329. 330. 331. 332. 333. 334. 335. 336. 837. 338. 339. 340. Where Sane Person Takes his Life by Accident . . 607 Deliberate and Intentional Suicide by Sane Person . . 610 Suicide and Death <' by his Own Hand " Synonymous . 611 English Bule as to Suicide ' . . . , . 611 Conflict of Cases in America ..... 612 The most Approved Rule ..... 613 The Rule in Massachusetts ..... 615 Death by Suicide " Sane or Insane " . . . . 616 When Suicide no Defense . . . .618 Death at the Hanas of Justice ..... 618 Death in Violation of Law ..... 619 When Recovery is Precluded because of FnbUc Policy 627 CHAPTEE XL PREMIUM, ASSESSMENTS AND DUES. $ 860. The Consideration of a Life Insurance Contract Is Called Premiums or Assessments . ... 630 b XVlll TABLE OF CONTENTS. Faoes. 351. All the Preminms the Consideration: Insurance Contract not one from Year to Tear ... ■ 630 352. Non-payment of a Premium will not Effect a Porfeitnre Unless so Stipulated . .... 632 863. Policy does not Attach Until First Premium is Paid If the Contract so Provides ...... 633 354. Time of Payment of Premium is of the Essence of the Con- tract ........ 634 366. When Punctual Payment is not Excused . . 635 366. Effect of War on the Contract . . . . .537 867. No Absolute Liability on the Part of Assured to Pay the Pre- mium if Payment is only a Condition and there is no Prom- ise to Pay ....... 63T 368. Time of Payment of Premium may be Extended . . 633 359. Excuses for Non-payment . . . . 63^ 360. When Company must Give Notice of Maturity of Premium . 639 361. Receipt of Premiums After they are Due, Usage . . 640 362. Company must not Mislead Assured .... 641 363. Effect of Prospectus . . . , . .643 364. Befusal to receive premium ..... 644 365. Dividends : Mutual Accouiitg ..... 645 366. Credit for Premiums ...... 645 367. Payment to Agent ....... 646 368. When the Day of Payment falls on Sunday . . . 650 369. Premium Need not always be Paid in Money: What Amounts to Payment ...... 650 370. Payment of Premium after Death of Insured : Days of Grace. 652 371. When Note is Taken for Premium . . . . 553 372. The same Subject: Premium Notes Proper . . . 555 373. Non-Eorf citable Policies ..... 656 374. The Massachusetts Non-forfeltnre Law . . . 559 375. Stranger may become Liable for Premium . . . 661 376. When the Company Wrongfully Declares a Forfeiture of the Policy. ........ 661 377. Assessments in Benefit Societies must be made in Exact Ac- cordance with their Laws : Strict Construction . . 562 378. Who Liable for Assessments ■ . . . . 567 379. Notice of Assessments ...... geg 380. The same Subject: Contents of Notice . . . . 571 381. The same Subject: Service of Notice .... 572 382. From what Time Period Allowed for Payment of Assess- ments Dates. ... 57^ 383. Manner of Paying Assessments . . . , 574 384. What does not Excuse Non-Payment . _ 575 385. Consequencesof Non-Payment: Suspension: Reinstatement. 67ft TABLE OF CONTENTS. XIX Pages. 886. To iritom Money Collected on an Assessment Belongs . 682 387. Power to Acensralate Surplus from Assessments . . 688 388. Power of suborcHnate lodges to waive Beqnirements of Laws of the order as to assessments .... 683 389. Dues ........ 688 CHAPTER Xn. MATURITY OF CONTRACT: PROOFS OF LOSS: GOOD STANDING. § 395. Maturity of Ufe Insurance Contract: Amonnt to be Be- covered. ....... 690 396a. Permanent DisabiUtry: Accident .... 692 396. Wbo Entitled to Beceive Amount of Insurance . . 693 397. Bights of Creditors when Payees in Policies . . . 695 398. laens on Insurance Money ..... 699 399. Creditors as Beneficiaries of Members of Benefit Socdelies . 600 400. Compliance with Terms of Policy as to Payment Believes Insurer ........ 601 401. Conditions Precedent to Becoveiy to be Performed after Loss ........ 603 402. No Llabili^ dviliter at Common Law for Destruction of Human Life ....... 604 403. Conditions as to Notice and Proofs of Loss . . 605 404. Substantial CompUanoe with Conditions Sufficient . . 606 405. Notice of Loss ....... 607 406. Proofs of Loss, by whom Made ..... 610 407. Form and Contents of Proofs ..... 612 408. To whom and at what Place Proofs must be Furnished . 614 409. Whai Company Befuses to Famish Blank Forms . . 615 410. Effect of Failure to Furnish Proofs .... 616 411. On Beceipt of Proofs of I.OS8, Insurer must Point oat De- fects, if any Exist, Within a Seasonable Time . . 616 412. Objections to Proofs must be Specific: Insurer must not Mislead Assured ...... 618 413. When Proofs are unnecessary ..... 619 414. Good Standing ....... 620 CHAPTER XTTT. WAIVEB AND ESTOPPEL f 420. DeflniUons of Waiver and Estoppel . . .624 421. In Insurance Law Waiver and Estoppel Much the Same Thing. 626 XX TABLE OF CONTENTS. FAOES. 422. Waiver may be Parol though Required by the Contract to be in Writing .....■• 627 423. Waiver must be Intentional and with Knowledge 628 424. No Estoppel when Contract is Illegal, nor when Parties made a Mutual Mistake, nor when Party has not been Misled: Estoppel when Contract is Executed . . . 628 425. Estoppel from Representations ..... 630 426. Waiver or Estoppel by acts of Officers or Agents . . 631 427. Estoppel in Matters Relating to Application . . . 636 428. The Same Subject: Knowledge, Mistakes or Fraud of Agents. 639 429. Estoppel in Matters Relatiag to the Policy or Certificate . 641 429o. When Performance of Condition is Impossible . . 644 430. Waiver or Estoppel in Matters Relating to Assignment or Change of Beneficiary . . ... 64S 431. Waiver or Estoppel by Receipt of Premium or Assessments . 647 432. The Same Subject: Notices of Premium or Assessments . 650 433. The Same Subject: General Rule . . . .652 484. General Rules of the Law of Waiver or Estoppel Apply to Insurance Contracts ...... 653 435. Calling for Proofs of Loss Waives Breach of Conditions . 654 436. Other Acts of Insurer, in Regard to Proofs of Loss Amount- ing to Waiver of Particular Requirements . . . 656 437. When Insurer is Precluded from Certain Defenses . . 668 CHAPTEE XrV. REMEDIES, PRACTICE, PLEADING AND EVIDENCE. 440. Concerning the Subject of this Chapter . . , 661 441. Parties and Forms of Action in Suits by or Against Volun- tary Associations ...... 662 442. Remedies of Members of Benefit Societies Unlawfully Ex- pelled: Jurisdiction of Equity: Mandamus: Action for Damages . . . . . .664 443. Limitations in Policies on Time Within which Action must be Brought Thereon, or as to Place of Bringing suit, or as to Issue of Execution ...... 669 444. When the Statute of Limitations Applies . . . 672 446. When the Limitations do not Attach: Waiver: Excuses for not Bringing Suit . . . . , gyo 446. When time of Limitation Begins to Run . . . 676 447. Condition of Limitation, how Taken Advantage of . . 675 448. Condition of Limitation as to time of Bringing Suit not Usual in Lite Insurance Policies : Construction . , gjs TABLE OF CONTENTS. XXI FAOES. 449. Conditions Concerning Arbitration Seldom Found in Life Insurance Policies . . . . . .677 460. Agreements to Refer to Future Arbitration, when and to what Extent Valid . . . . .677 451. Pleading in Actions on Insurance Contracts . . . 68i 453. Parties to Actions on Insurance Contracts . . 681 453. Actions on Benefit Certificates and Against Benefit Societies ior Benefits : Measure of Damages in Actions at Law . 682 464. Declaration or Petition ...... 686 456. Pleas, or Answers, Replications . _ . . . 689 456. Evidence in Actions on Insurance Contracts . . . 690 457. Presumptions ...... 691 458. Admissibility of Parol Evidence to Explain or Modify Answers of Assured in Application ..... 692 469. Declarations of Agent . . . . . .695 460. Declarations of Assured . . . . . .695 461. Evidence of Physician as. to Knowledge Acquired In Course of his Employment .... .696 462. Opinion Evidence ..... . 698 463. Offering Application in Evidence as Part of Contract . 700 464. Evidence of Preliminary Negotiations or Agreements . 701 465. When Parol Evidence Admissible .... 702 466. Canvassing Documents, Prospectuses, Rules, etc. , . 703 467. Evidence of Usage ...... 704 468. Construction of Insurance Policies .... 704 469. Burden of Proof ....... 705 470. Evidence of Death ...... 706 471. Proofs of Loss as Evidence . . . . .708 472. Foreign Insurance Companies can Ramove Causes to Federal Courts ........ 710 473. Retaliatory Legislation ...... 711 474. Insurance Companies Subject to Insolvency and Bankruptcy Laws like Other Corporations ..... 711 476. Winding up by Insurance Commissioner: Special Deposit vdth State: Insolvency of Mutual Company, Effect of Charter Provisions . . . . . .711 476. Attachments of Company's Property by Policy Holders . 713 477. Receivers of Insurance Companies .... 714 478. Insolvent Life Insurance Companies: Status of Policy Holders . . ..... 7I6 479. Insolvent Benefit Societies ..... 716 480. On Dissolution of Mutual Insurance Company Surplus Assets, After Creditors are Paid, Vests in State . . 717 compabativb tables of mortality ..... 720 Index ........ 725 Table of Cases ........ xxlU TABLE OF OASES. [The references are to the sections.] A. Abell V. Penn. Mnt. Xj. Ins. Co., 18 W. Va. 400. 366, 452 Abels V. McKeen, 16 N. J. Eq. 401. 38 Accident Ins. Co. v. CrandaU, 120 tr. S. 533. 216 Adams v. LindseU, 1 B. & Aid. 681. 272 Adams' Policy Trusts, 23 Ch. Div. 525; 52 L. Ch. 642; 48 L.T.727; 31"W. K. 810. 243,294 Adams v. South British, etc., Co. (Cal.), 11 Pac. Rep. 627. 450 Addison v.'S.'E. Com. Travel- ers' Assn., 144 Mass. 591 ; 4 N.Bng. Rep. 639; 12 N. East. Rep. 407. 244, 254, 260, 264 Adkins V. Columbia L. Ins. Co., 70 Mo. 27; 36 Am. Rep. 410. 334, 336 Adkyns v. Hunt, 14 N. H. 206. 29 Adriance v. Roome, 62 Barb. 399. 127 MtoA Ins. Co. i;. Kittles, 81 Ind. 96. 464 JBtna Ins. Co. v. Shryer, 85 Ind. 362. 412, 413, 436 ^tna Ins. Co. v. Sparks, 62 Qa. 187. 408 ^tna Ins. Co. o. Stevens, 48 m. 31. 471 Mtaa, r. Ins. Co. v. Webster, 6 Wall. 129. 277 ^tna li. Ins. Co. v. Brodie, 5 Can. Sup. Ct. 1 ; 20 L. Can. Jut. 286. 466 ^tna L. Ins. Co. v. Davey, 123 XJ. S. 739; 8 Sup. Ct. Rep. 333. 326, 328 ^tna Ins. Co. v. Prance, 91 U. S. 510. 197, 199, 210, 225 ^tna L. Ins. Co. v. Prance, 94 XJ. S. 561. 205a, 249, 250, 302 ^tna L. Ins. Co. v. Green, 38 Up. Can. Q. B. 593; 7 Ont. App. 171. 369 ^tna L. Ins. Co. v. Mason, 14 R. I. 583. 283 ^tna Nat. Bk. v. Manhattan L. Ins. Co., 24 Fed. Bep. 769. 299 Mtna, Nat. Bk. v. V. S. L. Ins. Co., 24 Fed. Rep. 770. 312 Agnew V. A. O. XT. W., 17 Mo. . App. 264. 377, 379 Ala. Gold L. Ins. Co. v. Ger- many, 74 Ga. 51. 364, 361, 376 Ala. Gold li, Ins. Co. v. Garner, 77 Ala. 215. 199, 427 Ala. Gold L. Ins. Co. v. Herron, 56 Miss. 643. 272, 273 Alabama Gold L. Ins. Co. v. Johnson, 80 Ala. 467; 2 South. Rep. 128. 203, 206, 214 Ala. Gold Ii. Ins. Co. v. Mayes, 61 Ala. 163. 267, 270 Alabama Gold L. Ins. Co. v. Mobile Mut. Ins. Co., 81 Ala. 321; 1 South. Rep. 561. 225,302 (xxiii) XXIT TABLE OF CASES. [The references are to the sections.] Alabama, etc., Ins. Co. v. Thomas, 74 Ala. 678. 182, 352 Albany's Case, 1 Eep 110&. 237 Albert Ii. Assn. in re, 9 L. B. Eq. 708; 39 L.J. Ch. 539; 22 L. T. 697; 18 W. R. 1097. 476 Albert r. Order of Chosen Friends (XT. 8. Cir. Ct. D. Ky.), 34 Ted. Rep. 721. 395o Allegre v. Maryland F. Ins. Co., 6 H. & J. 408; 6 6. & J. 186; 14 Am. Dec. 289. 450 AUemania Ins. Co. v. Little, 20 Bradw. 431. 445 Alexander v. Campbell, 41 L. J. Ch. 478; 27 L. T. 25. 450 Alexander v. Cauldvrell, 83 N. Y. 480. 127 Alexander v. Wallace, 8 Lea, 669. 260 Alkan v. N. H. Fire Ins. Co., 53 Wis. 136. 299 Allen V. Manasse, 4 Ala. 554. 256 AUen V. St I. Granite State M. Aid Assn. (N. H.), 9 AG. Bep. 103; 4 N. Eng. Kep. 289. 427, 453 Ballon V. GUe, Admr., 50 Wis. 614. 86, 170, 241, 243, 244, 247, 264, 256, 261, 264, 29T. Bamberger V. Com. Credit, etc., Co., 15 C. B. 676; 1 Jnr. (N. 8.) 500. 454 Bancroft v. Home Ben. Assn., 8 N. Y. St. Bep. (Superior Ct.) 129. 235 Bane v. Travelers' Ins. Co., 7 Ky. L. Bep. 750. 372 Bang V. FarmTille, etc., Ins. Co., 1 Hughes, 290. 412 Bangor v. Masonic Iiodge, 73 Maine, 429. 44 Banks ». Wilson, Nova Scotia Eq. 210. 281 Baptist Assn. v. Hart, 4 Wheat. 1. 38 Barbara o. Occidental Grove, etc., 4 Mo. App. 429. 51, 53, 83, 148, 424, 452 Barber v. F. & M. Ins. Co., etc., 16 W. Va. 658. 446, 447 Barker v North British Ins. Co., 9 Scot. Sess. Cas. 869. 376 Barker v. Phoenix Ins. Co., 8 Johns. 307. 405 Barlow e. Scott, 24 N. T. 40. 179 Barnes v. Allen, 25 Ind. 222. 257 Baron v Brammer, 100 N. Y. 872. 299, 312 Barrett v. Union M. Ins. Co., 7 Cush. 176. 164, 458 Barry r. Brune, 71 N. Y. 261 ; 8 Hun. 395. 292, 301, 429 TABLE OF CASES. [The references are to the sections.] Bsny V. Eqnitable L. Ass. Soc, 59 N. T. 587. 301 Sarteaa v. Phoenix Mnt. L. Ins. Co., 67 N. T. 59S; IHnn, 430; 67 Barb. 331; 3 T & C. 576. 23i Bartholomew v. Mercantile, etc., Ins. Co., 34 Hnn, 263. 282 Bartlett v. Union M. Ij. Ins. Co., 46 Me. 500. 411, 443 Barton v Enterprise B. & L. Assn. (Ind.), 13 West. Bep. 816; 16 N. East. Bep. 486. 59 Barton v. Proyident Belief Assn., 63 N. H. 535; 1 H. Eng. Bep. 856. 236, 237, 306 Basch B. Hnmboldt, etc., Ins. Co., 35 N. J. 429. 353 BasseU v. American I*. Ins. Co., 2 Hughes, 531. 182 Basye v. Adams, 81 Ey. 368. 246, 263, 295, 302, 307, 311 BatdorS Exr. v. Fehler (Pa.), 8 Cent. Bep. 230 ; 9 Atl. Bep. 468. 349, 397 Bates V. Detroit Mnt. Ben. Assn., 51 Mich. 587; 17 N. W. Bep. 67. 377, 380 Baner «. Sampson Lodge, 102 Ind. 262. 44, 61, 71, 73, 73, 81, 89, 91, 92, 94, 105, 107, 123, 161, 304, 450 Baxter «. Brooklyn L. Ins. Co., 44 Hnn, 184. 360 Baxter v. Chelsea M. F. Ins. 1 Allen, 294. 147, 426 Beadle v. Chenango Mat. Ins. Co., 3 Hill (N Y.) 161. 352 Beardslee v. Morgner, 4 Mo. App. 139. 452 Beatty «. Enrts, 3 Pet. 566 441 Beaumont « Meredith, 3 Yes. & Bea. 181. 39, 67, 96, 112, 120 Beebe o. Bstabrook, 79 H. T. 246. 267 Beebe v. Hartford, etc., Ins. Co, 25 Conn. 51; 65 Am. Dec. 553 159 Bedford's Appeal, 40 Pa. St. 18. 857 Behler «. German, etc., Ins.Co., 68 Ind. 354. 147, 159, 171, 426 Behr «. Conn. M. L. Ins. Co., 2 FUp. 692; 4 Fed. Rep. 357, 471 Behrens v. Germania F. Ins. Co., 64 la. 19. 423 Bell V. Hausley, 3 Jones, 131. 84 BeU V. Lycoming F. Ins. Co., 19 Hon, 238. 412, 436 Belleville M. Ins. Co. v. Van Winkle, 1 Beas. (N. J.) 333. 147, 167 Bellows «. Todd, 39 la. 209. 138 Belt V. Brooklyn L. Ins Co., 13 Mo. App. 100. 373 Benefit Society v. Dngre, 11 B. L. 344. 55, 168 Beneficial Soc. v. White, 30 N. J I,. 313. 454 Benhson v. United 6. & L. Ass. Co., 7 Exch. 744; 14 E. I.. & E. 524; 16 Jnr. 691; 21 I,. J. Ex. 317. 201 Ben. Franklin F. Ins. Co. t». Flynn, 98 Pa. St. 627. 405, 412, 436 Ben. Franklin Ins. Co. v. GU- lett, 54 Md. 812. 278 Bennecke v. Insurance Co., 106 U S 359. 423, 435 Bennett v. Lycoming M. F. Ins. Co , 67 N. r. 274. 405 Bennett v. Wheeler, 12 Ija. Ann. 763 143 Bentley v. Columbia Ins. Co., 17 N. T 421. 270 Bergmann v St. Louis Mut. L. Ins. Co., 2 Mo. App. 362. 361, 362 XXVlll TABLE OF CASES. [The references are to the sections.] Bergman v. St. Paul Mut. Bldg. Assn., 29 Minn. 278. 83 Berthon v. Lon^hman, 2 Stark. N. V. 258. 462 Belts V. Betts, 4 Abb. N. Caa. 317. 38 Bevin v. Conn. Mut. L. Ins. Co., 23 Conn 244 250, 303, 324 Bickerton v. Jacques, 28 Hun, 119. 293 BidweU V. Astor Ins. Co., 16 N. T. 263. 279 Bidwell V. Insurance Co., 3 Sawy. 261. 464 Bigelow V. Berkshire L. Ins. Co., 93 U. S. 284. 188, 336 Bigelow V State Mut. L. Ins. . Co., 123 Mass. 113. 374 Bilbrough v. Metropolis F. Ins. Co., 6 Duer, 587. 201 Bingham's Appeal, 64 Fa. St. 346. . 247 Brink v. Merchants, etc., Ins. Co., 49 Vt. 442. 179 Bird V Penn. Mut. L. Ins. Co., 11 Phila. 485; 2 W. N. C 410. 356 Bish V. Hawkeye Ins. Co., 69 la. 184. 445 Bishop V. Brainerd, 28 Conn. 289. 41 Bishop V Clay, etc., Ins. Co., 49 Conn 167 282 Bishop V. Empire Order Mut. Aid, 43 Huu. 472. 172, 237, 242, 273 Bittinger v. Providence, etc., Ins. Co., 24 Fed. Rep. 549. 455 Black & Whitesmith's Soc. v. Van Dyke, 2 Whart. 309 ; 30 Am. Dec 263 91, 94, 103, 106 Black V. Winnesheik Ins. Co., 31 Wis. 74 445 Blackburn's Case, 8 De G. M. & G. 177. 283 Blackman v. Wadsworth, 65 la. 80. 260 Blackwell v. Broughton, 56 Ga. 390. 255 Blake v. Exchange, etc., Ins. Co., 12 Gray, 265. 411, 422, 427 Blakely v. Benecke, 59 Mo. 193 112, 128 Blanchard v. Atlantic Mut. F. Ins. Co., 33 N. H. 9. 385 Blanchard v. EauU, 44 Cal. 440. 41 Blanks v. Hibemia Ins. Co., 36 La. Ann. 599. 445 Blen V. Bear Hirer, etc., 20 Cal. 602. 140 Blenon's Estate, Brightly, 338. 38 Blisset V. Daniel, 10 Hare, 493. 103 Bliss V. BCaweah C. & I. Co., 66 Cal. 602. 140 Blood V. Howard Ins. Co., 12 Cush. 472. 199 Bloom V. Franklin L. Ins. Co., 97 Ind. 478. 339, 457 Bloomer v. Waldron, 3 HUl, 365. 237 Bloomingdale v. Lisberger, 24 Hun, 355. 175, 301 Bloomlngton Mut. L. Ben. Assn B. Blue, 120 HI. 121; 11 N. E. Rep. 331; 8 West. Rep. 642 54, 169, 171, 245, 249, 265, 302, 311, 312, 429, 431. Bobbitt V. Liverpool, L. & G. Ins. Co., 66 N. C. 70. 464 Bowditch V. Andrew, 8 Allen, 339 256 Bogardns v. New York L. Ins. Co., 101 N. T. 328. 355 Boisblanc v. La. Equitable L. Ins. Co., 34 La. Ann. 1167. 469 Bolton V. Bolton, 73 Me. 299. 61, 146, 162, 259 TABLE OF CASES. XXIX [The references are to the sections.] Bomberger «. United Brethren, etc, Soc CPa-)» 18 W N. C. 469; 4 Cent. Rep. 694; 6 AU. Bep. 41. 250, 396 Bond's Appeal, 31 Conn. 183. 357 Boos r. World Mnt. L. Ins. Co., 64N. T. 236. 221,234 Booth,Inre,llAbb.fr. C. 145. 366 Borgraefe «. Knights of Honor, 86Mo. App.218; 23Mo.App. 137. Ill, 148, 389, 381, 383, 385, 388, 436, 431. BorradaUe v. Hunter, 6 Man. & G. 639, 5 Scott. N. B. 418; 13 1,. J. C. P. 825; 7Jnr. 443; 8 Big. I.. & A. Ins. Co. 380, 332, 338. Booldin r. Alexander, 15 WaU. 131. 103 Bown V. Cath. Mnt. Ben. Assn., 33 Hnn. 363. 339, 313 Boyd V. Cedar Ba^lds Ins. Co. (la.), 30 N. W. Sep. 5S5. 413 Boyd V. New England H. !•. Ins. Co., 34 La. Ann. 848. 470 Boyle F. Fhceniz Mnt. L. Ins. Co., Bamsay's App. Cases (Lower Canada), 379. 336 Boynton v. Clinton, etc., Ins. Co., 16 Barb. 354. 411, 413 Boynton v. Middlesex, etc., Ins. Co., 4 Met. 212. 443 Bradlee v. Andrews, 137 Mass. 50. 356, 260 Bradley v. Mnt. Ben. L. Ins. Co., 45 N. T. 422; 3 Lans. 341. 339 Bradt v. Benedict, 17 N. T. 93. 59,479 Bragdon v. Ins. Co., 43 Me. 259. 377 Brancker«.Bobert8, 7 Jor. (h. 8.) 1185. 91 Biandford v. Saunders, 36 W. R. 650. 250 Brandnp v. St. Panl F. & M. Ins. Co., 27 Minn. 393. 153 Braonstein o. Accidental Death Ins. Co., IB. &S. 782; 8 Jnr. (s. s.) 506; 31 L. J. Q. B. 17; 6 L. J. (H. s.) 550. 403 Breasted v. Farmers' L. & T. Co., 8 N. T. (4 Seld.) 299 i 4 HiU, 73; 59 Am. Dec 482. 179, 333, 334. Breckinridge v. Amer. Cent. F. Ins. Co., 87 Mo. 62. 411, 436, 457, 471. Brewer «. Chelsea, M. F. Ibis. Co., 14 Gray, 203. 147, 157, 171, 426. Brewster v. Striker, 2 N. T. 19. 423 Bnggs« Earle, 139 Mass 473; I N. East. Bep. 847. 84, 361, 812 Briggs e. McCnUongh, 36 Cal. 550. 167 Bnggs V National L. Ins. Co., II Fed. Rep. 458 367 Bright V. Metaire Cem. Assn., 33 La. Ann. 58. 140 Brink v HanoTer F. Ins. Co., 80 N. T. 108 405, 413, 437 Brink V. Merchants', etc., Ins. Co., 49 Vt 44«. 159, 459, 468 Brockway v. Mut. Benefit L. Ins. Co , 9 Fed. Bep 253 331 Brogan r Manufacturers', etc.. Ins Co, 29 Up Can. C. P. 414. 183 Brook, In re, 15 C B. (s. s.) 403; 33L.J.C. F 346; 10 L. T. 378. 102 Brooks c Phcenix Mnt L. Ins. Co., 16 Blatchf . 182 365, 371 Brooklyn L. Ins. Co. v. Bledsoe, 52 Ala. 538. 362, 454 Brosard v. Marsonin, 17 Low. Can. Jnr. 270. 301 xxx TABLE OF CASES. [The references are to the sections.] Brown v. Curtis, 6 Mason, 421. 29 ISrown V. Dale, L. B. 9 Ch. D. 78. 29 Brown V. Oilman, 4 Wheat. 255. 29 Brown V. Harmon, 73 Ind. 412. 260 Brown V. Mass. M. L. Ins. Co., 59 N. H. 298. 353, 367, 372 Brown v. Metropolitan L. Ins. Co. (Mich.), 32 N. W. Eep. 610; 8 West. Rep. 775. 222, 230a, 232, 427, 458, 461 Brown «. Boger Williams Ins. Co., 7 E. I. 301; 6 E. I. 394. 179, 443 Brown v. Orr, 112 Pa. St. 233. 453 Brown V. Savannah Ins. Co., 24 Ga. 101. 443 Brace's Case, 2 Strange, 819. 103 Brace ». Continental li. Ins. Co., 58Vt.253; lN.Eng.Eep.635. 372 Brace v. Garden, 6 1.. B. Ch. 32 ; 39L.J.Ch.334; 18W. E.384. 397 Bruce v. Garden, 8 L. E. £q. 430; 20 L. T. 1002; 17 W. B. 990. 397 Brummer ». Cohn, 86 N. Y. 11 ; 9 Daly, 36; 58 How Pr. 239; 6 Abb. N. C. 409; 57 How. Pr. 386. 301 Bryant v. Ocean Ins. Co., 22 Pick. 200. 323 Buckbee v. U. S. Ins. Co., 18 Barb. 541. 362 Bnckland v. Adams Exp. Co., 97 Mass. 124. 279 Buckley v. Cater, 17 Ves. 16. 36 Budd V. Walla Walla, etc., Co., 2 Wash. T. 347. 140 Buecking v. Eobert Blum Lodge, 1 Cily Ct. Eep. 61. t Buellv. Conn. Mnt. L. Ins. Co., 2 Elipp. 9. r 205 Bulger V. Washington L. Ins. Co., 63 Ga. 328. 855, 365 Builard V. Elnney, 10 Cal. 60. 39,36,38 Bnrbank v. Bockingham Ins. Co., 24 N. H. 550; 57 Am. Dec. 300. 161 Burdine v. Grand Lodge, 37 Ala. 478. 44 Burd Orphan Asylnm o. School District, etc., 90 Pa. St. 29. 44 Borgan o. LyaU, 2 Mich. 102. 29 Bnrges v. Mawbey, 10 Tes. Jr. 319. 243 Bnrgin v. Fatton, 5 Jones Eq. (N. C.) 425. 260 Burke r. Boper, 79 Ala. 138. 441 Bnrkhardo. Travelers Ins. Co., 102 Pa. St. 262; 48 Am. Eep. 205. 179 Burland v. Northwestern M. Ben. Ass., 47 Mich. 424. 453 Burls V. Smith, 7 Bing. 704. 128 Borridge v. Eowe, 1 T. & C. C. C. 183, 248. 303, 398 Burritt v. Saratoga, etc, Ins. Co., 5 Hill, 188; 40 Am. Dec. 846. 197, 199, 218, 219 Burrows v. Tomer, 24 Wend. 277. 263 Bursinger v. Bank of Water- town, 67 Wis. 76; 30 N. W. Eep. 290. 399, 302, 430 Burt V. Grand Lodge, 44 Mich. 208; 33 N. West. Bep. 13; 9 West. Eep. 13. 102, 414, 442 Burton v. Buckeye Ins. Co., 26 Ohio St. 467. 443 Burton o. Eyden, 8 Q. B. 295. 93 Burtons. St. George's Society, 28 Mich. 261. 106, 110, 141 Bushnell v. Bushnell, 92 Ind 60." 297 Bussing 0. TTnioB Mnt. L. Ins. Co., 34 Ohio St. 222. S73 TABLE OF CASES. XXXI [The references are to the sectioiis.] Butchers' Ben. Assn., In re., 38 Pa. St. 398. 85, 86 Butler v. Am. Popular L. Ins. Co., 10 Jones & Sp. 342. 365, 869 Butler V. St. IjOuis L. Ins. Co., 45 la. 93. 462 Batterfield v. Beardsley, 28 Mich. 412. 29 Butterworth i;. Western Ass. Co., 132 Mass. 489. 412, 436 Byan v. Bickford, 140 Mass. 31. 38 Byers v. Insurance Co., 35 Ohio St. 606. 181 Byrne v. Casey (Tex.), 8 S. W. Bep. 38. 187, 269, 307 V. Caldicott V. Griffiths, 22 Eng. L. &E. 529; 8 Ex. 898; 1 0. L. B. 715: 23 L. J. Ex. 54. 30, 35, 11 Caldwell v. Stadacona, etc., Ins. Co., 3 Buss. & G. (Nova S.) 218. 447 Calhoun v. Union MutJ L. Ins. Co., 3 Pugs. & B. (N. B.) 13. 353 Calvin v. Provincial Ins. Co., 27 Up. Can. Q. B. 580. 450 Cammacko. Ijewis, 15 Wall. 643 249, 2S0, 302, 303, 396, 397 Campbell v. Am. Fop. Ii. Ins. Co., 1 McArthur, 246; 2 Big. L. & A. I. Cas. 16. 407, 450 Campbell v. International Life Ass. See, 4 Bosw. 298. 368 Campbell v. Charter Oak Ins. Co., 10 Allen, 218. 471 Campbell v. Merchants', etc., Ins. Co., 37 N. H. 65; 72 Am. Dec. 324. 159, 221 Campbell v. National L. Ins. Co., 24 Up. Can. C. P. 133. 361, 426 Campbell v. National L. Ass. Co., 34 Up. Can. Q. B. 35. 452 Campbell v. N. Eng. L. Ins. Co., 98 Mass. 381 ; 1 Big. L. & A. Ins. Cas. 229. 196, 202, 203,206,209, 211, 213,214, 221, 234, 253, 302 Campbell «. Bawdon, 18 N. Y. 412. 257 Campbell v. Bichards, 5 Barn. & A. 480. 462 Campbell o. Wiggins, Bice (S. C), Ch. 10. 257 Canada Landed Credit Co. v. Canada Agrieul. Ins. Co., 17 Grant's Ch. (Up. Can.) 418. 411, 435 Canfleld v. Watertown F. Ins. Co., 55 Wis. 419. 450 Canning r. Farquhar, 16 Q. B. Div. 727. 274 Cannon v. Home Ins. Co., 53 Wis. 585. 435 Cannon v. N. W. Mut. L. Ins. Co., 29 Hun, 470. 175, 302, 406, 457 Carlew v. Druiy, 1 Ves. & B. 154. 35, 107 Carlin v. Western Ass. Co., 57 Md. 515. 464 Carlton r>. Southern M. Ins. Co., 72 6a. 371. 29, 35, 480 Carmichael v. N. W. Mut. Ben. Assn., 51 .Mich. 494. 256, 261 Carpenter c. Am. Ins. Co., 1 Story C. C. 57. 210 Carpenter v. Centennial Mut. L. Assn., 68 la. 463; 27 N. W. Bep. 456. 355, 384 Carraway v. Merchants' M. Ins. Co., 26 La. 298. 443 Carr-oU v. Girard F. Ins. Co. (Cal.), 13 Pac. Bep. 86S. 4S0 xxxu TABLE OF CASES. [The references are to the sections.] -Carson v. Carson, 1 Phill. Bq. 57. 267 Carson v. Gcerman Ins. Co., 62 la. 433. 413> 436 Carson v. Jersey City Ins. Co., 43N. J. L. 303; 44 N. J. L. 210; 39 Am. Bep. 584. 179, 181, 204, 427 Cartan v. Father Mathew, etc., 3 Daly, 21. 86, 94 Carter v. Humboldt, etc., 12 la. 287. 299, 443 Carter v. John Hancock Mut. Life Ins. Co., 127 Mass. 153. 167,374 Carter v. U. States Ins. Co., 1 Johns. Ch. 463. 297 Cashaw v. Northwestern Ins. Co., 6 Biss. 476. 405 <3a8hman In re, 3 Demarest (N. Y.), 242. 267 •easier v. Conn. Mut. L. Ins. Co., 22 N. Y. 427. 324 Castner's Appeal, 88 Pa. St. 478. 267 Oastner v. Farmers' M. F. Ins. Co., 50 Mich. 273. 381, 437, 471 -Caston V. Monmouth Mat. F. Ins. Co., 54 Me. 170. 159 ■Catholic Order of Foresters v. Callahan (Mass.), 16 N. East. Bep. 14; 6 N. Eng. Bep. 96. 243 Catland v. Hoyt, 78 Me. 355. 452 Catoirv. American L. Ins., etc., Co., 33 N. J. L. 487. 354 Cazenove «. British, etc.. Ass. Co., 29 L. J. C. P. (N. s.) 160; 6 Jur. 826; 8 W. B. 243 Ex. Ch. 204, 210 Central Nat. Bank v. Hnme, 3 Mackey, 360. 312 •Central By. Co. e. Kisch, 2 H. L. Cas. 99. 363 Chamberlain v. Lincoln, 129 Mass. 70. 69, 74, 75, 103, 107, 148, 385 Chambers v. Atlas Ins. Co., 51 Conn. 17. 446 Chandler v. St. Paul, etc., Ins. Co., 21 Minn. 85. 446 Chapin v. Fellowes, 36 Conn. 132; 4 Am. Bep. 49. 292, 299, 301, 429 Chapman v. McHwrath, 77 Mo. 38. 297 Chapman v. Bepublic L. Ins. Co., 6 Biss. 238. 336 Charter Oak Ins. Co. v. Brant, 47 Mo. 419. 260, 301 Charter Oak L. Ins. Co. v. Smith, 3 Cin. L. Bui. 607. 353 Chase v. Cheney, 68 HI. 509. 77 Chase v. Phoenix Mnt. Ii. Ins. Co., 67 Me. 85. 373 Chattock «. Shawe, 1 M. & B. 498. 234 Chesmar v. Bucken, 37 N. J. Eq. 415. 257 Chicago B. & Q. B. Co. v. Cole- man, 18 HI. 297. 140 Chicago L. Ins. Co. v. Warner, 80 m. 410. 366 Chickerlng v. Globe Mut. Life Ins. Co.. 116 Mass. 321. 369 Chisholm V. Nat. Capitol L. Ins. Co., 62 Mo. 213; 14 Am. Bep. 414. 166, 250, 395 Chowne v. Bayliss, 31 Bear. 351. 297 Chrisman «. State Ins. Co. (Or.), 18 Pac. Bep. 466. 181, 199, 454 Christy v. Homeopathic M. L. Ins. Co., 93 N. Y. 345. 373 Chubb V. Upton, 95 XJ. S. 665. 41 Church V. La Fayette F. Ins. Co., 66 N. Y. 222. see TABLE OF CASES. XXXllI [The references are to the sectiona.] ChTixchill «. Churchill, 2 Hetc. (Ky.) 46. 257 Cin. Coffin Co. «. Home Ins. Co., 7 Cin. L. B. 312. 450 Citizens' B". Ins. Co. v. Doll, 35 Md. 89. 412 City of Davenport v. Peoria, etc., Ins. Co., 17 la. 276. 276 City Insorance Co. v. Bricker, 91 Pa. St. 488. 182 City Ins. Co. v. Conupero. Bank, etc., 68 lU. 348. 476 City Five Cents, etc.. Bank v. Pennsylvania F. Ins. Co., 122 Mass. 165. 471 City Savings Bank v. Whittle, 63 N. H. 587. 292, 303 Clack V. HoUand, 2 W. B. 402; 9 Beav. 262. 398 Claggett V. Kilbonme, 1 Black, 346. 29 Clapp t>. Mass. Benefit Assn. (Mass.), 6 N. Eng. Kep. 103; 16 N. East. Rep. 433. 205a, 216 Clark V. Allen, 11 B. I. 439. 253, 302 Clark V. Dnrand, 12 Wis. 228. 293 Clark V. Hamilton M. Ins. Co., 9 Gray, 148. 469 Clark V. MobUe, 67 Ala. 217. 473 Clarke v. Union M. F. Ins. Co., 40 N. H. 333; 77 Am. Dec. 721. 217, 458 Clay F., etc., Ins. Co. v. Wus- terhaosen, 75 HI. 28S. ' 464 Clayton v. Gresham, 10 Tes. 288. 470 Clemmitt «. N. York L. Ins. Co., 76 Ya. 366. 356, 466 devenger «. Mat. L. Ins. Co., 2 Dak. 114. 464 CUfiord, In re, 2 Sawy. 428. 175 Cljft V. Schwabe, 3 C. B. 437; 17 L. J. C. P. 2; 2 C. & K. 134EX. Ch.; 2Big. L.&Acc. Ins. Cas. 312. . 333 Clinton v. Hope Ins. Co., 45 N. Y. 461. 263 Clough V. Batcliff, 1 De G. & Sm. 164; 16 L. J. Ch. 476. 57 Cln£E V. Mnt. Ben. L. Ins. Co., 13 Allen, 308; 99 Mass. 317. 339, 457 Cobb V. N. Eng., etc., Ins. Co., 6 Gray, 192. 450 Cobbs V. Fire Assn., etc (Mich.), 36 N. W. Rep. 222; 13 W. Bep. 149. 436 Cockbom v. Thompson, 16 Vt. 321. 29 Cockerell v. Ancompte, 26 L. J. C.P. 194; 2C.B. (n. s.) 440; 3 Jnr. (n. s.) 844. 121 Cofiey V. Universal L. Ins. Co., lOBiss. 354; 7 Fed. Rep. 301. 373 CoSee V. Soathwark Ben. Soc, 2 W. N. C. 600. 450 Cohen v. N. Y. Mnt. L. Ins. Co., 50 N. Y. 610. 356, 376 Coit V. Commercial Ins. Co., 7 Jolms. 385. 177 Cole «. Knickerbocker L. Ins. Co., 63 How. Pr. 442. 294, 372 Cole V. Marple, 98 HI. 58. 299, 312 Coleman v. Ejiights of Honor, 18 Mo. App. 189. 81, 103, 144, 306, 307 Coleman «. West Ya. OU Co., 25 W. Ya. 148. 140 Collett «. Morrison, 9 Hare, 162. 222, 278, 363, 466 Collins et al. «. Dawley, 4 Colo. 140. 301 Collins V. Hare, 2Bligh (n. s.), 106. 299 Collins V. Hozie, 9 Paige, 81. 267 xsxiy TABLE OF CASES. [The references are to the sections.] CJoUins V. Ins. Ck)., 7 PhUa. 201. 276 CJolpoys t>. Colpoys, Jacob, 451. 263 Colombia Ins. Co. v. Bnckley, 83 Pa. St. 293. 379, 385 Colombia Ins. Co. v. Cooper, 50 Pa. St. 331. 153, 158, 221, 278, 458 Columbia F. Ins. Co. ». Kinyon, 37 N. J. L. 33. 377, 378 Combs -u. Charter Cafe Xi. Ins. Co., 65 Me. 382. 464 Combs V. Hannibal Savings & Ins. Co., 43 Mo. 148. 192, 193, 458 Combs V. Shrewsbvuy, etc.,Ins. Co., 32 N. J. Eq. 515. 299 Coiamercial Bank, etc., b. Bon- ner, 13 Smed. & M. 649. 142 Commercial Ins. Co. v. Ives, 56 m. 402. 153, 159, 221, 458 Commercial Ins. Co. o. Union Ins. Co., 19 How. 318. 127, 172 Com. Ins. Co. v. Elliott, 13 Atl. Bep. 970; 12 Cent. Rep. 668. 163, 463 Conmiercial Fire Ins. Co. s. Allen (Ala.), 1 South. Bep. 202. 159 Commercial League v. The Peo- ple, 90 m. 166. 55 Commercial Union Ass. Co. e. Hocking, 19 W. N. C. 213. 450 Com. Union Ins. Co. v. State (Ind.), 15 N. East. Bep. 518; 13 West. Bep. 47. 405 Commonwealth v. Ben. Soc, 8 W. & S. 247. 442 Commonwealth V. Commission- ers.'etc., 37 Pa. St. 277. 442 Commonwealth «. German Soc, 15 Pa. St. 251. 85, 88, 103, 109, 389, 442 Commonwealth e. Green, 4 Whart. 531. 103 Commonwealth e. Goardians of the Poor, 6 Serg. & B. 469. 104, 109, 442 Commonwealth v. Mass. Mat. Fire Ins. Co., 112 Mass. 116; 119 Mass. 45. 378 Commonwealth e. National Mut. Aid Assn., 94 Fa. St. 481. 61 Commonwealth v. Penn. Ben. Inst, 2 S. & B. 141. 85, 88, 389, 442^ Commonwealth v. Penn. Ben. Inst., 2 Serg. & B. 254. 100, 101 Commonwealth v. Pike Ben. Soc, 8 Watts & S. 247. 103, 10ft Commonwealth v. Society, 8 Watts & S. 250. 102 Commonwealth v. St. Patrick's Ben. Soc, 2 Binney, 441; 4 Am. Dec. 453. 62, 85, 97, 102, 103 Commonwealth v. Wetherbee, 105 Mass. 149. 17, 51, 52, 162 Commonwealth «. Worcester, 3 Pick. 462. 86 Commonwealth Ins. Co. v. Monninger, 18 Ind. 352. 454 Commonwealth Ins. Co. v. Sea- nett, 41 Pa. St. 161. 471 Comstock, In re, 3 Sawy. 228. 424 Couch B. City Fire Ins. Co., 38 Conn. 181. 42ft Conigland b. Smith, 79 N. 0. 303. 260 Connanghtonv. Sands, 32 Wis. 387. 255 Connecticut General L. Ins. Co. V. McMurdy, 89 Pa. St. 363. 22» Conn. Mnt. L. Ins. Co. v. Bur- roughs, 34 Conn. 305 ; 19 Am. Rep. 530. 301, 303 Connecticut Mnt. L. Ins. Co. V. Bear, 26 Fed. Bep. 582. a8& TABLE OF CASES. XXXV [The references are to the sections.] Conn. Mat. L. Ins. Co. v. Dnerson, 88 Gratt. 630. 35B, 444 Conn. M. Ii. Ins. Co. v. Fish, 59 N. H. 126. 294 Conn. Mut. L. Ins. Co. v. Groom, 86 Fa. St. 92; 27 Am. Rep. 689. 334 Conn. Mat. L. Ins. Co. v. Home Ins. Co., 17 Blatchf. 142. 285 Conn. Mat. L. Ins. Co. v. Lnchs, 108 U.S. 498. 19,204,250,427,452 Coim. Mut. L. Ins. Co. c. N. Y. &N. H. B. R. Co., 25 Conn. 266. 402 Connecticut Mut. L. Ins. Co. ». Rndolph, 45 Tes. 464. 266 Conn. Mat. L. Ins. Co. v. Ryan, 8 Mo. App. 535. 312 Conn. Mat. L. Ins. Co. v. Seigel, 9 Bush, 460. 471 Conn. Mat. Xiife In.s. Co. «. Schaefer, 94 U. 8.457. 163, 164, 248, 249, 250, 252, 302, 397 Conn. Mut. L. Ins. Co. v. Schwenck, 94 U. S. 593. 407, 471 Conn. Mut. L. Ins. Co. v. Union Trust Co., 112 U. S. 260; 6 Sup. Ct. Rep. 199. 214, 233, 234, 461 Conn. Mat. L. Ins. Co. «. Westervelt, 52 Conn. 586. 301 Conover V. Mutual Ins. Co., 1 Comst. 290. 1+7 Conover v. Mass. Mat. L. Ins. Co., 3 Dill. 217. 202 CcmsoUdated, etc., Ins. Co. «. Cashow, 41 Md. 59. 363 Continental Ins. Co. v. Pierce (Kan.), 18 Pac. Rep. 291. 153, 458 Continental Ins. Co. v. Ran- dolph, 2 Ey. L. Sep. 313. 412 Continental L. Ins. Co. v. Ash- craft, 18 W. N. C. 97. 369 Continental L. Ins. Co. o. Ham ilton, 41 Ohio St. 274. 294, 429, 466 .Continental L. Ins. Co. v. Honser, 89 Ind. 258. 464 Continental L. Ins. Co. v. Eess- ler, 84 Ind. 310. 464 Continental Ii. Ins. Co. v. Palmer, 42 Conn. 64; 19 Am. Rep. 530. 265, 291, 301 Continental L. Ins. Co. v. Rogers, 119 Ul. 474; 10 N. E. Rep. 242; 8 West. Rep. 88. 411, 436 Continental L. Ins. Co. e. Volger, 89 Ind. 672. 260 Continental L. Ins. Co. v. Webb, 54 Ala. 688. 176, 257, 294 Continental L. Ins. Co. v. Yang, 16 N. E. Rep. 220; 12 West. Rep. 716. 233 Conver v. Phoenix Ins. Co., 3 Dill. 226. 232 Conway F. Ins. Co. c. Sewall, 64 Me. 352. 454 Cooker v. Mtaa, Ins. Co., 7 Daly, 566. 173 Cook «. Continental Ins. Co., 70 Mo. 610. 437 Cook V. lion F. Ins. Co., 67 Cal. 368. 471 Coolidge V. Charter Oak L. Ins. Co., 1 Mo. App. 109. 428 Coombs V. Charter Oak L. Ins. Co., 65 Me. 382. 363 Coon V. Swan, 30 Vt 6. 396, 397 Cooper V. Farmers' M. F. Ins. Co., 60 Pa. St. 299; 88 Am. Dec. 644. 282 Cooper «. Mass. Ins. Co., 102 Mass. 227; 1 Big. L. & Ace. Ins. Cas. 768. 331, 335 Cooper c. Pacific Mat. Life Ins. Co.,' 7 Nev. 121. 172, 273 XXXVl TABLE OF CASES. [The references are to the sections.] Cooper r. Schaefer (Pa.), 9 Cent. Bep. 601; 11 Atl. Bep. 548. 397 Co-operative L. Assn. v. Leflore, 53 Miss. 1. 212, 223, 462 Cornell v. Milwaukee, etc., Ins. Co., 18 Wis. 887. 405 Comett V. Phoenix Ins. Co., 67 la. 388. 443 Corson's Appeal, 113 Fa. St. 438; 6 Atl. Bep. 213; 4 Cent. Bep. 307. (See also Appeal of Corson). 250 Cotton Exchange v. State, 64 Ga. 668. 102 Cotton States L. Ins. Co. «. Edwards, 74 Ga. 220. 426, 471 Cotton States L. Ins. Co. v. Lester, 62 Ga. 247. 361, 433 County Life Ass. Co., In re, L. B. 6 Ch. App. 293. 136 Coursin v. Penn. Ins. Co., 46 Pa. St. 323. 446 Courtenay v. Courtenay,3 Jones & La. T. 519. 46 Conrtnay v. Wright, 2 GifE. 337 ; 6 Jur. (N. s.) 1283; 9 W. B. 153. 303, 397 Court Mount Royal v. Bonlton, Q. B. (Quebec), 2 Stephens Digest, 106. 70 Covenant Mut. Ben. Assn. v. Conway, 10 Bradw. 348. 267, 459 Covenant Mut. Ben. Assn. e. Hoffman, 110 lU. 603. 257, 452, 471 Covenant Mnt. B. Assn. v. Sears, 114 111. 108. 170, 178, 241, 254, 262, 264, 468 Covenant Mut. Ben. Assn. r. Spies, 114 m. 468. 377, 379, 880, 406, 409, 436 Cowles V. Continental L. Ins. Co., 63 N. H. 300; 1 N. Eng. Bep. 247. 372 Cox V. Curwen, 118 Mass. 198. 262 Cox V. Stafford, 14 How. Fr. 521. 266 Coxc.UnitedStates, 6Pet. 203. 175 Coyle V. Kentucky Granger's Mut. Ben. Assn. (Ky.), 2 S. W. Bep. 676. 379 Craighton v. Agricultural Ins. Co., 39 Hun, 319. 409 Cramer v. Bird, L. B. 6 Eq. 143. 69, 479 Crawford Co., etc., Ins. Co. v, Cochran, 88 Pa. St. 230. 418 Crescent Ins. Co. v. Camp, 64 Tex. 521. 464 Criswell v. Grumbling, 107 Pa. St. 408. 260 Crittenden v. Phoenix M. L. Ins. Co., 41 Mich. 442. 299 Cromwell v. Boyal Can. Ins. Co., 49 Md. 366. 175 Crosbys. Stephan, 32 Hun, 478. 301 Cross V. Armstrong, 44 Ohio St. 613. 299 Crossley v. Conn. F. Ins. Co., 27 Fed. Bep. 30. 460 Crossman u. Mass. Mut. Ben. Assn., 143 Mass. 435; 3 N. Eng. Bep. 517; 9 N. East. Sep. 753. 377, 387, 431, 432 Cmm's Appeal, 66 Fa. St. «4. 126 Cullen V. Duke of Queensburg, 1 Brown, Ch. 101. 71, 112, 128 Cumberland Coal Co. v. Sher- man, 30 Barb. 562. i3i Cumberland VaUey Ins. Co. v. ScheU, 29 Pa. St. 87. 156, 157, 159, 171 Cummins v. Agricultural Ins. Co., 67 N. Y. 260. 471 TABLE OF CASES. Xxxvii [The references ore to the sections.] Camilngham v. Smith, 70 Fa. St. 450. 250, 302, 470 Currie, In re, 13 L. R. Eq. 188; 41 I,. J. Bk. 55; 20 W. R. 368. 398 Cnrrier v. Continental L. Ins. Co., 57 Vt. 496. 250 Currier v. Ins. Co., 53 N. H. 538. 369 Curry «. Commonwealth Ins. Co., 10 Pick. 535. 218 Curtis V. Mut. Ben. Ii. Co., 48 Conn. 98. 453 Curtis V. Home Ins. Co., 1 Biss. 485. 445 Cushman v. U. S. L. Ins. Co., 70N. Y. 72; 63 N. Y. 404; 4 Hun, 783. 210, 214, 230a, 233, 234, 323, 407, 463, 471 Cuthbertson e. North Carolina Home Ins. Co. (N. C), 2 S. E. Rep. 258. 427 Cutler V. Thomas, 26 Vt. 73. 35, 36 Cutting V. Cutting, 6 Sawy. C. C. 396. 257 D. Bakin v. Liverpool, etc., Ins. Co., 13 Hun, 122; 77 N. Y. 600. 407 Dalby v. India & London Life Ass. Co., 15 C. B. 365; 3 C. L. R. 61; 24 L.J. C. 2; 18 Jur. Ex. Ch. 1024; 28 Eng. L. Eq. 312. 16, 21, 163, 248, 253, 302, 397 Damron v. Penn. Mut. L. Ins. Co., 99 Ind. 478. 301, 304, 444 Daniels v. Andes Ins. Co., 2 Mont. 78. 454 Daniels v. Citizens' Ins. Co , 10 Biss. 116; 6 Fed. Rep. 425. 464 Daniels « . Equitable E. Ins . Co . , 50 Conn. 551. 412, 438 Daniels v. Hudson R. F. Ins. Co., 12 Cush. 416; 59 Am. Dec. 192. 195, 196, 199, 206 Daniels v. Pratt, 143 Mass. 216 ; ION. East. Rep. 166; 3 N. Eng. R. 480. 239, 241, 244, 247, 252, 263, 307, 311, 312 D'Arcy v. Tamar, etc., R. Co., 2L. R. Exch. 158; 36 L. J. Exch. 37; 4 Hurl. & C. 463. ISS, 142 Darnley v. London, Chatham & Dover R. Co., L. R. 2 H. L. 43. 423 Darrow o. Family Fund Soc, 42 Hun,. 246. 337, 453 Daul V. Firemen's Ins. Co., 35 La. Ann. 98. 413, 436 Davenport v. Long Island Ins. Co., 10 Daly, 535. 460 Davenport v. New England Ins. Co., 6 Cush. 340. 210, 212 Davenport v. Peoria, etc., Ins. Co., 17 Iowa, 276. 171 Davey v. .ffitna L. Ins. Co.. 20 Fed. Rep. 482. 326, 471 Davidson v. Dallas, 14 Ves. 576. 265 Davidsons. Knights of Pythias, 22 Mo. App. 263. 69, 307, 462 Davies, In re, 13 Eq. (^as. 163. 306 Davis V. Boardman, 12 Mass. 30. 263 Davis V. Bank of England, 2 Bing. 393.' 99 Davis V. Canada, etc., Ins. Co., 39 Up. Can. Q. B. 452. 445 Davis V. Davis, 49 Me. 282. 410 Davis V, L. Assn., 11 Fed. Rep. 780. 476 XXXVIU TABLE OF OASES. [The references are to the sections.] DaTis V. Mass. M. L. Ins. Co., 13 Blatchf. 462. 353 Davis V. Stewart, 26 Ohio St. 643. 443 Dawkins v. Antrobus, L. B. 17 Ch. D. 615; 44 L. T. Rep. (N. 8.) 657; 29 W. R. 511. 98, 102, 103, 105, 106, 109, 442 Dawson v. Fitzgerald, 1 Ex. D. 257; 45 L. J. Ex. 893; 35 L. T. 220; 24 W. B. 773. 450 Day V. Conn. General L. Ins. Co., 45 Conn. 480. 376 Day V. Mut. Benefit L. Ins. Co., 1 McArthur, 41 ; 29 Am. Rep. 565. 181, 210, 212, 274 Day V. Mut. Ben. L. Ins. Co., 1 McA. 598. 471 Day 11. Case, 43 Hun, 179. 264 Deady v. Bank Clerks, etc., Assn., 17 Jones & Sp. 246. 296, 305 Dean's Appeal, 98 Fa. St. 101. 477 Dean v. Mtua. Ins. Co., 62 N. T. 642; affg. 2 Hun, 358. 3S8, 482,459 Dean v. American Mut. L. Ins. Co., 4 Allen, 96. 335 Dean v. Bennett, L. B. 6 Ch. 489. 102 De Beauvoir t. De Beauvoir, 3 H. L. Cas. 524. 260 DeBost V. Albert Palmer Co., 35 Hun, 386. 127 Dedham lust., etc., v. Slack, 6 Cush. 408. 143 De Gogorza v. Knickerbocker L. Ins. Co., 65 N. Y. 235. 334, 336 De Grove v. Metropolitan Ins. Co., 61 Sr. Y. 594. 447 De .Touge a. Goldsmith, 14 Jones & Sp. 131. 301 Delacey v. Neuse River Navi- gation Co., 1 Hawks, 274; 9 Am. Dec. 636. 100, 101, 443 Delancey v. Ins. Co., 62 N. H. 681. 153, 193 Delaunayv. Stricsland, 2 Stark. 416. 112 Delaware, etc., Ins. Co. v. Gil- lett, 54 Md. 219. 282 Den V. puling, 4 Zab. (24 N. J. li.) 653. 103 Dennis v. Kennedy, 19 Barb. 617. 36 Dennis v. Massachusetts Ben. Assn., 47 Hun, 338. 386 Densmore Oil Co. r. Densmore, 64Pa. St. 43. 38 Deppe V. Southern Mut. L. Ins. Co., 8 Ky. L. Rep. 67. 371, 372 DeRonge v. Elliott, 23 N. J. Eq. 486. 301 Derrick «. Lamar Ins. Co., 74 111. 404. 445 DeSenancour v. Societe La Prevoyance (Mass.), 6 N. Eng. Rep. 270; 16 N. East. Rep. 563. 441 Devens v. Mechanics', etc., Ins. Co., 83 N. Y. 168. 437 Dever, ex parte, 18 Q. B. Div. 660. 299 Devoss V. Gray, 22 Ohio St. 159- 35, 112, 120 Dewees v. Manhattan Ins. Co., 6 Vroom (36 N. J. L.), 366. 154, 458 Dexter Saving Bank v. Cope- land,^? Me. 263. 297 Diboll V. Mtaa, L. Ins. Co., 32 La. Ann. 179. 266, 273, 431 Dickenson «. Chamber of Com- merce, etc., 29 Wis. 49. 85,97,103 Dickenson v. Lee, 4 Watts, 82. 257 TABL£ OF CASES. XXXIX [The references are to the sections.] Dickenson v. Parris, 8 S. & R. 71. 260a Diehl V. Adams, etc., Ins. Co. 68 Pa. St. 443. 421, 423 Dietrich et al. v. Madison Rel. Assn., 45 Wis. 79. 244, 254, 255 DifEenbach v. Vogeler, 61 Md. 370. 299, 430 Diligent Fire Co. r. Common- wealth, 75 Pa. St. 291. 63, 83, 84, 389 DiU V. Shahan, 25 Ala. 694. 283 Dillard v. Manhattan L. Ins.* Co.,44Ga. 119. 325,356 DUleber v. Home L. Ins. Co., 69 N. Y. 256; 23 Am. Kep. ' 182. 204, 461 Dilleber v. Knickerbocker I<. Ins. Co., 76 N. Y. 567; 7 Daly, 540. 358, 360, 426, 432 District Grand Lodge v. Cohn, 20 Bradw. 333. 389, 414 District Grand Lodge «. Jed- idjah Lodge, 65 Md. 236. 70, 73 Dodge V. Freedman's Co., 93 U. S. 379. 460 Dodge's Appeal, 106 Pa. St. 216; s. c. 51 Am. Bep. 519. 260 Doe V. Dixon, 9 East, 16. 179 Dogge V. Northwestern, etc., Ins. Co., 49 Wis. 501. 299 Dolan V. Conrt Good Samari- tan, 128 Mass. 437. 94, 106, 107, 144, 161 Dolbier o. Agricnltnral Ins. Co., 67 Me. 180. 443, 454 Donald v. L. Ins. Co., 4 S. C. 321. 369 Doniol V. Commercial P. Ins. Co., 34 N. J. Eq. 30. 282 Donnelly v. Insurance Co., 70 la. 693; 28 N. W. Kep. 607. 428 Doody V. Higgins, 2 Kay & J. 729. 260 Dorr V. Phoenix M. L. Ins. Cv.., 67 Me. 438. 373 Dorion e. Positive Government, etc., Co., 23 Low. Can. Jnr. 261. 359 Dormay «. Borradaile,5 M. G. & S. 380. 332 Donbleday v. Muskett, 7 Bing. 110. 112,128 Dougherty v. Hnnter, 54 Pa. St. 380. 125, 140 DoutMtt V. Stinson, 73 Mo. 199. 38 Dow o. Moore, 47 N. H. 419. 38 Downey v. HofEer, 16 W. N. C. 184. 302 Downing v. St. Columbia's Soc, 10 Daly, 262. 101, 442 Doyle Vi, Continental Ins. Co., 94 U. S. 535. 472, 473 Drake v. Stone, 58 Ala. 133. 292, 294 Dreier v. Continental L. Ins. Co., 24 Fed. Rep. 670. 214, 234, 471 Drew V. Lebom, 2 Macq. H. of. L. Cas. 1. 102 Drew t7. Wakefield, 54 Me. 291. 260a Drysdale v. Piggott, etc., 22 Beav. 238; 8 DeG. M. & G. 546. 250, 396 DnS V. Canadian, etc., Ins. Co., 6 Ont. App. 238. 377 Dnfanr v. Professional Life Ass. Co., 23 Beav. 599; 4 Jur. (n. s.) 841; 27 L. J. Ch. 817. 332 Duke r. FuUer, 9 N. H. 536; 32 Am. Dec. 392. 39, 44 Dnmmer v. Corp. of Chippen- ham, 14 Ves. 245-252. 103 Duncan e. Sun F. Ins. Co., 6 Wend. 494. |200 Dongan v. Mut. Ben. L. Ins. Co., 46 Md. 469-498. 351, 357 TABLE OF CASES. [The references are to the sections.] Donston v. Imperial Gas Co., 3 B. & Ad. 126. 80 Duplex Boiler Co. v. Garden, 101 N. T. 387. 383 Dnrantaye v. Societe St. Ignace, 13 Low. Can. Jur. 1. 103, 286 Durham v. Fire & Marine Ins. Co., 10 Sawy. 626; 22 Ted. Bep. 468. 282 Durian v. Central Verein, etc., 7 Daly,168. 237,250,259, 296,305,312 DnrreU v. Bederly, 1 Holt N. P. 283. 162 Dutcher v. BrooMyn L. Ins. Co., TJ. S. Cir. Ct. E. D. Mo., 3 DiU. 87; 4 Ins. L. J. 812. 373 Dutchess of Kingston's Case, 2 Smith Lead. Cas. 711. 420 Dutton V. Vermont M. F. Ins. Co., 17 Vt. 369. 446 Dutton r. Willner, 62 N. Y. 312. 396, 429 DnvaU v. Goodson, 79 Ky. 224. 237, 241, 243, 244, 254, 266, 267, 291 Dwight V. Germania L. Ins. Co., 103 N. T. 341; 4 Cent. Bep. 529; 8 N. East. Bep. 654. 229 Dfryder v. Edie, Ang. on Ins., § 296; 2 Park, on Ins. (7th ed.) 639. 260 E. Eadie v. Slunmon, 26 N. T. 9. 301 Eagle Ins. Co s. Lafayette Ins. Co., 9 Ind. 443. 443 Eames v. Home Ins. Co., 94 U. S. 621. 173 Earnshaw v. Sun Mut. Aid Soc. (Md.), 12 Atl. Bep. 884; 11 Cent. Bep. 508. 463 East Haddam, etc., v. East Haddam, etc., 44 Conn. 259. 38 Eastman v. Carroll Co., etc., 46 Me. 307. 298 Eastman v. Provident, etc., Assn. (N. H.), 20 Cent. L. J. 580. 157, 161, 237, 239, 241, 307 East Texas F. Ins. Co. v. CoSee, 61 Tex. 287. 29» East Texas F. Ins. Co. v. Dy- ches, 66 Tex. 666. 464 Easum «. Appleford, 6 M. & C. 66. 306 Ebbinghausen v. Worth Club, 4 Abb. N. C/ 300. 27, 112, 441 Eby's Appeal, 84 Pa. St. 241. 260 Eckel V. Benner, 41 Ohio St. 232. 302 Edgerly v. Emerson, 23 N. H. 665. 138 Edgelyc. Farmer's Ins. Co., 43 la. 687. 408, 464 Edington v. .Xtna L. Ins. Co. 100 N. Y. 636. 223 Edington v. .Xcna L. Ins. Co., 77 N. Y. 664; 13 Hun, 643. 461, 462 Edington v. M. L. Ins. Co., 67 N. Y. 185; 6 Hun, 1. 204, 230a, 460, 461, 463 Edwards v. Footner, 1 Camp. 530. 274 Edwards v. Lycoming Ins. Co., 75 Pa. St. 378. 405 Edwards v. Travelers' Ins. Co., 20 Fed. Bep. 661; 22 Blatchf. 225; 122 V. S. 467. 329, 336, 406 Eggleston o. Centennial M. L. Assn., 6 McC. 484; 18 Fed. Bep. 14; 19 Fed. Bep. 201. 463 Eggleston v. Council BlufEs Ins. Co., 66 la. 308. 163,428,446 Eichbaum e. Irons, 6 Watts & S. 67. 120 Eilenberger v. Protective, etc., Ins. Co., 89 Pa. St. 464. 153, 167, 168, 169, 464 TABLE OF CASES. 3di [The references are to the sectioiis.] Elseman «. Judah, 1 Plip. 627; 4 Cent. Ik Jonr. 846. 396 Electric L. Ins. Co. «. Fahren- knig, 68 m. 463. 426 Eliot, etc.. Bank o. Com. Union Ins. Co., 142 Mass. 142. 436 Elkhart M. Aid Assn. e. Hough- too, 98 Ind. 149. 161 Elkhart Mat. Aid Assn. v, Houghton, 103 Ind. 286; 53 Am. Bep. 514; 2 N. East. Rep. 763; 1 West. Bep. 284. 249, 260, 304, 463, 454 Elliott V. Iiycoming, etc., Ins. Co., 66 Fa. St. 22. 431 EUiott «.BoyaI Exchange, etc., 2 L. B. Ex. 237; 36 L. J. Ex. 129; 16 L. T. 399; 16 W. B. 907. 450 Elliott V. Whedbee, 94 N. C. 115. 239, 307, 464 Ellison V. Bignold, 2 Jac. & Walk. 611. 36,67 Ellison o. Beynolds, 2 Jac. & W. 611. 29 Ellis V. Albany, etc., Ins. Co., 60 N. r. 402. 276 EUis V. Boston, etc., B. B. Co., 107 Mass. 1. 477 Ellis V. Council Blofis Ins. Co., 64 la. 607. 446 Elmes V. Ogle, 2 Eng. L. & Eq. 379; 15 Jnr. 180. 142 Elmsley v. Toung, 3 Myl. & K. 82. 260 Elsas o. AUord, 1 City Ct. Bep. 123. 88, 89 Elsey V. Odd-fellow Bel. Assn. 142 Mass. 224; 8 N. Ko:. Bep. 667; 7 N. East. K . 844. 65, 84, 86, 168, 178, 311, 844, 247, 260, 863, 254. 256, 260, 861, 864, 463. Emeiy v. Boston Marine Ins. Co., 138 Mass. 410. 171, 173 Emery v. Pease, 20 N. T. 63. 223 Endowment & Ben. Assn. e. State, 35 Ran. 253. 61, 162, 167 Enos «. Sun Ins. Co., 67 Cal. 621. 166 Eppinger o. Canepa, 20 Pla. 262. 863 Epstein e. Mut. Aid, etc., Assn. 28 La. Ann. 938. 381 Equitable L. Ass. Soc. «. Brobst., 18 Neb. 526. 426 Equitable Ins. Co. v. Heame, 20 Wall. 494 (4 ClifE. 193). 280 Equitable Ins. Co. v. McCrea, 8 Lea, 641. 433 Equitable L. Assn. Soc. v. Pat- terson, 41 aa. 338. 260, 329 Erd V. Bavarian, etc., Assn. (Mich.),34N. West. Bep. 555; 11 West. Bep. 171. 86, 88, 101, lOS Erdmann v. Mut. Ins. Co., etc., 44 Wis. 376. 86, 146, 148, 170, 178, 255, 370, 431 Erwin v. Springdeld, etc., Ins. Co., 12 Mo. App. 146. 105 Estabrook v. Union Mut. L. Ins. Co., 54 Me. 224. 334 Estate of Balz, 12 FhUa. 29. 294 Esty Adm. v. Clark et al, 101 Mass. 36. 860a Eureka Ins. Co. v. Bobinson, 56 Fa. St. 266; 94 Am. Dec. 66. 173 Evans «. Fhila. Club, 50 Fa. St. 107. 85, 99, 443 Evans v. Salt, 6 Beav. 266. 260 Evans v. Tri-Mountain Ins. Co. 6 Allen, 329. 147, 171, 426, 477 Evans o. United States L. Ins. Co., 64 N. Y. 304; 3 Hun, 587. 324 Evans v. U. S. L. Ins. Co., 3 Hun, 587; 64 N. T. 304. 358, 364 xlil TABLE OF CASES. [The references are to the sectioBS.] fiwald V. Northwestern Mnt. L. Ins. Co., 60 Wis. 431. 373 Ewing V. Medlock, 6 Port. (Ala.) 82. 143 Excelsior Mut. Aid. Assn. v. Kiddle, 91 Ind. 84. 408, 427, 461, 453 Expressmen's, etc., r. Lewis, 9 Mo. App. 412. 244, 254, 255, 294 F. Palrcluld t>. N. E. M. L. Assn., 51 Vt. 613. 249, 302, 452, 466 Ealkenbach v. Patterson, 43 Ohio St. 359. 476 Fame Ins. Co. v. Thomas, 10 Bradw. 545; aff'd 108 111. 91. 443 Farley v. Bryant, 32 Me. 483. 283 Farley v. Union Mut. L. Ins. Co.,41Hnn,303. 373 Farmers', etc., Ins. Co. v. Barr, 94 Pa. St. 346. 443, 446 Farmers' Fire Ins. Co. v. Chase, 56 N. H. 341. 132, 377, 378 Farmers' Ins. Co. b. Frlck, 2 Cin. L. Bui. 16. 410 Farmers', etc., Ins. Co. v. Gar- gett, 42 Mich. 293. 422 Farmers' Mut. Ins. Co. c. Graybill, 74 Pa. St. 17. 406 Farmers' Bank v. McKee, 2 Pa. St. 318. 140 Farmers', etc., Ins. Co. v. Sny- der, 16 Wend. 481. 183 Farmer r>. State (Tex.), 7 S. W. Bep. 220. 51, 162 Farmville Ins. Co. v. Butler, 55 Md. 233. 278 Famsworth v. Storrs, 6 Cush. 412. 106 Faunce v. State M. L. Ins. Co., 101 Mass. 279. 276 Fawcettr. Charles, 13 Wend. 473. 63 Faxton «. Faxon, 28 Mich. 159. 425 Fay V. Noble, 12 Cush. 1. ia7 Fayerweather v. PhcEnix Ins. Co., 7 N. T. St. Eep. 25. 454 Fayles v. National Ins. Co., 49 Mo. 380. 125 Feam v. Ward, 65 Ala. 33. 294 Feit V. Vanata, 21 N. J. Eq. 84. 257 Felix V. Grand Lodge, 31 Kan. 81. 257, 312 FeUs V. Bead, 3 Ves. 70. 441 Fenn v. Craig, 3 Young & Coll. 216. 285 Fenn c. Lewis, 81 Mo. 259; 10 Mo. App. 478. 241, 312 Ferguson v. Fisk, 28 Conn. 501. 285 Ferguson v. Mass. M. I,. Ins. Co., 32 Hun, 306 ; aff'd 102 N. Y. 647. 163, 303, 397, 431 Femdon ». Canfleld, 104 N. Y. 143; ION. East. Eep. 146; 6 Cent. Kep. 203. " 292 Ferraria v. Vasconcelles, 23 111. 466. 77 Ferrer v. Home Mut. Ins. Co., 47 Cal. 416. 183 Ferris v. Thaw, 5 Mo. App. 279; s. c. 72 Mo. 450. 35, 112, 120 Field V. Ins. Co., 6 Biss. 121. 405, 412 Filrath o. Schonfield, 76 Ala. 199. 312 Findelsin c. Metropole F. Ins. Co., 57 Vt. 520. 406, 411 Fink V. Queen Ins. Co., 24 Fed. Rep. 818. 278, 281 Fire Ins. Companies v. Fel- rath, 77 Ala. 194. 403, 407, 411, 436 TABLE OF CASES. zliii [The references are to the sections.] First Baptist Church «. Brook- lyn Fire Ins. Co., 19 N. Y. SOS. 172 Fishback «. Fhoentslns. Co., 54 Cal. 422 436 Fisher v. Andrews, 87 Hun, 170. 886 Fisher o. Crescent Ins Co., S3 Fed. Bep. 649. 205a, 206 Fischer «. Hope Mut. L. Ins. Co., 69 N. Y. 161. 376 Fisher v. Eean^, 11 L. E. Ch. D. 853; 49 L. J. Ch. 11; 41 L. T. S35. 101, 102, 442 Fisk V. Equitable Aid Union (Pa.), 11 Atl. Rep. 84; 9 Cent. Rep. 403. 174, 306, 307, 309 Fitch V. American Popular L. Co., 59 N. Y. 657; 17 Am. Rep. 372. 197, 199, 203, 204, 234, 837 Fithian «. Northwestern Mut. L. Ins. Co., 4 Mo. App. 386. 373 Fitzgerald v. Hartford L. & A. Ins. Co. (Conn.), IS Atl. Rep. 673. 249, 502 Fitzpatrick v. Hartford L. & A. Ins. Co., 6 N. Eng. Rep. 180. 249, 260 Fitzpatrick e. Mut., etc., Assn., 25 La. Ann. 443. 358 Flaherty e. Germanla Ins. Co., 1 W. N. C. 352. 450 Flemyng v. Hector, 2 Mees. & W. 172; s.c. 2 Gale, 180. 80, 35, 38, 91, 112, 120, 121 Fletcher v. Collier, 61 Ga. 653. 294 Fletcher o. New York Life Ins. Co., 4 McCrary, 440. 176 Fletcher v. N. Y. L. Ins. Co., 14 Fed. Rep. 846. 222 Fletcher ». N. Y. L. Ins. Co., 8 McC. 603; 11 Fed. Rep. 377. 457 Flynn v. Equitable L. Ins. Co., 78 N. Y. 568; 84 Am. Rep. 561. 221,223 Foley 0. Tovey, 54 ?a. St. 190. 3f Folmer's Appeal, 87 Pa. St. 188. 61, 162, 246, 265, 311 Foot V. ^tna Life Ins. Co., 61 N. Y. 571-576. 177, 179, 181, 210 Forbes v. American Mut. L. Ins. Co., 16 Gray, 249. 250, 824, 464 Forbush v. Western Mass. Ins. Co., i Gray, 840. 199 Forest City, etc., Ins. Co. v. School Directors, 4 Bradw. 146. 403 Fortescue «. Barnett, 3 My I. & K. 86. 297, 805 Foster V. Gile, 50 Wis. 608. 2!i3 Foster «. Harrison, 72 Law Times, 186. 101 Foster v. Praj (Minn.), 29 N. W. Rep. 165. 41, 61 Fourdrinier c. Hartford F. Ins. Co., 16 U. C. (C. P.) 403. 274 Fowler t>. Mtji& F. Ins. Co., 6 Cow. 678; 16 Am. Dec. 460. 197, 202, 203 Fowler c. Metropolitan L. Ins. Co., 41 Hun, 857. 433 Fowler v. Mut. L. Ins. Co., 4 Lans. 202. 330 Fowler v. N. Y. Indemnity Ins. Co., 26 N. Y. 432. . 464 Fowler V. Palmer, 62 N. Y. 633. 287 Fowkes «. Manch. & London, etc., Ins. Co., 8 B. & S. 917; 32 L. J. Q. B. 153; 11 W. B. 622; 8L. T. (n. s.) 309. 214, 234 Frank «. Mut. L. Ins. Co., 102 N. Y. 2(i(!; 12 Daly, 267. 301 Franklin Bridge Co. v. Wood, 14 Ga. 80. 42 Franklin F. Ins. Co. v. Colt, 20 Wall. 560. 275 xliv TABLE OP CASES. [The references are to the sections.] Franklin Ben. Assn. v. Com- monwealth, 10 Pa. St. 357. 52, 86 Franklin Ins. Co. v. Hazzard, 41 Ind. 116. 302 Franklin F. Ins. Co. v. Martin, 40 N. J. L. 568; 8 Ins. L. J. 134. 154, 156, 169, 222, 278, 458 Franklin Ins. Co. 9. Sefton, 53 Ind. 380. 302, 354, 454, 455, 467 Franklin L. Ins. Co. v. Wallace, 93 Ind. 7. 179, 371 Fraternal Mat. L. Ins. Co. v. Applegate, 7 Ohio St. 292. 460 Frazer v. Phoenix M. L. Ins. Co., 36 Up. Can. Q. B. 422. 452 Fredendall e. Taylor, 26 Wis. 286. 115 Freeman v. Nat. Benefit Soc, 42 Hun, 252. 246, 252, 337, 453 Freeman v. Bright, 2 Ired. Eq. 72. 260 Freme o. Brade, 2 DeG. & J. 582; 27 L. J. Ch. 697; 4 Jur. (N. 8.) 748. 397 Frey v. Wellington Mut. Ins. Co., 4 Ont. App. 293. 380 Fried v. Eoyal Ins. Co., 50 N. Y. 243; 47 Barb. 127. 273 Friezin v. Allemania F. Ins. Co., 30 Fed. Rep. 352. 443, 446 Fritz V. Muck, 62 How. Pr. 69. 86, 86, 88, 101, 442 Froelich e.- Atlas L. Ins. Co., 47 Mo. 406. 370,432 Fry V. Charter Oak L. Ins. Co., 31 Fed. Rep. 197. 476 Fngure c. Soc. St. Joseph, 46 Vt. 362. 80. 81, 92, 186, 187 Fuller V. Boston, etc., Ins. Co., 4 Mete. 207. 171 Fuller «. B. & O Employe's Be- lief Assn., 9 Cent. Rep. 82 ; 10 Atl. Rep. 237. 401 Fuller V. Linzee, 185 Mass. 468. 469 Fuller V. Plainfleld Academy, 6 Conn. 632. 102, 103, 442 FuUer v. Rowe, 57 N. T. 23. 36 FoUum V. New York IT. Ins. Co., 7 Gray, 61; 66 Am. Dec. 462. 197, 44» G. Galbraith «. Arlington, etc., Ins. Co., 12 Bush, 29. 210 Gallery v. Nat. Exch. Bank, 41 Mich. 169. 131 Gamble v. Ac 103 German Ins. Co. v. Ward, 90 111. 650. 408 Getty V. Develin, 54 N. T. 403. 38 Gibson v. American Mut. Life Ins. Co., 37 N. Y. 580. 230a, 407 Gibson r. Armstrong, 7 B. Mon. 481. 77,103 Gibson v. Ky. Grangers, etc., Soc, 8 Ky. L. Rep. 520, 296 Gilbert v. Columbia Turnpike Co., 3 Johns. Cas. 107. 160 Gilbert v. Crystal Fountain Lodge (Ga.) , 4 S. W. Rep. 905. 441 Gilbert v. Moose's Admr., 104 Pa. St. 74; 49 Am. Rep. 570. 249, 250, 302, 396, 397 Gilbert v. N. Am. F. Ins. Co., 23 Wend. 43. 431 Gill V. Dovralng, 17 L. R. Bq. 316; SOL. T. 157; 22 W. R. 360. 398 Gilmore v. Lycoming F. Ins. Co., 55 Cal. 123. 454. Girard, etc , Ins. Co. v. Hebard, 96 Pa. St. 45. 423 Girard L. Ins. Co. v. Mut. L. Ins. Co., 86 Pa. St. 236 ; 97 Pa. St. 15. 361, 365, 432 Girard L. Ins. Co. v. Mut. L. Ins. Co., 97 Pa. St. 16. 407, 411, 413, 436, 467 Girdlestone v. N. B. Mar. Ins. Co ,11 L. R. Eq Cas. 197. 823 Glttings V. McDermott, 2 Myl. & E. 69. 260 Given v. Wisconsin Odd-fel- lows' Mut. L. Ins. Co. (Wis.), 87 N. W. Rep. 817. 248 advi TABLE OF CASES. [The references are to the sections.] Glacias ». Black, 67 N. Y. 563. 229 Glanz V. Gloeckler, 10 Bradw. 484; 104 lU. 673. ^aP^ Glass V. Walker, 66 Mo. 32. 9P^^ Glendale Woolen Co. v. FrSt- tection lus. Co., 21 Conn. 19; 54 Am. Dec. 305. 164, 196, 203 Globe Ins. Co.». Boyle, 21 Ohio St. 119. 263 Globe Mut. Ins. Co. v. Beals, 79 N. Y. 205. 287 Globe M. L. Ins. Co. v. Snell, 19 Hun, 561. 268 Glutting o. Metropolitan L. Ins. Co. (N. Y.), 11 Cent. Bep. 348; 13 Atl. Rep. 4. 197 Godchaux v. Merchants' M. Ins. Co., 34 La. Ann. 235. 427 Goddard v. Merchants' Ex- change, 79 Mo. 609; 9 Mo. App. 290. 87 Godsall V. Boldero, 9 East, 72 21, 163,248 Goetzman v. Conn. Mnt. L. Ins. Co., 3 Hun, 515; 5 N. Y. St. C. 572. 339 Goit V. National Protection Ins. Co., 25 Barb. 189. 277, 299, 353 Golden Rule v. People, 118 111. 492; 7 tV^est. Rep. 219; 9 N. £. Rep. 342. 51 GoldenRule». Swigert, 118 111. 492. 61 Goldsmith v. Union M. L. Ins. Co., 18 Abb. N. C. 325. 278 Goldwater v. Liverpool, etc., Ins. Co., 39 Hun, 176. 426 Gooch V. Assn. Aged Females, 109 Mass. 558. 91 Gooden v. Amoskeag Co., 20 N. H. 73. 443 Goodman «. Jedidjah Lodge (Md.), 8 Cent. Rep. 278; 9 AU. Bep. 13. 44, 70, 72, 73, 74, 89 Goodrich «. Treat, 3 Colo. 408. 177, 249 Goodwin », Ins. Co., 16 Low. Can. Jur. 298. 182 Goodwin v. Mas. Mut. L. Ins. Co., 73 N. Y. 480. 374, 397, 413, 436, 465 Gordon v. Small, 53 Md, 650. 260 Gorman v. Hand-in-hand Ins. Co., 11 Irish C. L. 224. 450 Gorman v. Russell, 14 Cal. 537. 29, 33, 36, 38,44, 67, 96, 112 Gorton o. Dodge Co., etc., Ins. Co , 39 Wis. 121 . 371 Gosling V. Caldwell, 1 Lea (Tenn.),454. 260,306 Gosling V. Veley, 12 Q. B. 347. 86 Goucher e. Northwestern Trav- eling Men's Assn., 20 Fed, Rep. 598. 232, 234 Gould V. Emerson, 99 Mass. 154. 241, 292 Grace v. Am. Cent. Ins. Co., 109 IT. S. 278. 276 Graham v. Firemen's Ins. Co., 9 Daly, 341. 437 Graham v. Phoenix Ins. Co., 17 Hun, 158. 406 Grand Lodge A. O.XJ. W. v. Child (Mich.), 14 West. Rep. 464; 38 N. W Bep. 1. 161, 243, 310 Grand Lodge v. Eisner, 26 Mo. App. 108. 103, 161, 173, 266, 259, 261, 295 Grand Lodge v. Stepp, 14 Pittsb. Leg. J. 164; 3 Fenny. 45. 72, 377 Grangers' L. Ins. Co. v. Brown, 67 Miss. 308. 460, 469 Grange Mill Co. v. Western Ass. Co., 118 111. 396. 413, 469 Grant v. Ins. Co., 75 Me. 203. 298 TABLE OF CASES. xlvii [The references are to the sections.] Grant «. Kline, 116 Fa. St. 618; 9 Atl. Eep. 160; 7 Cent. Rep. 626. 219, SOS, 397 Grattan v. Metropolitan L. Ins. Co., 92 N. Y. 274; 28 Hun, 4S0. 223, 232, 427, 468 Grattan v. Metropolitan L. Ins. Co., 80 N. Y. 381; 36 Am. Rep. 617. 821, 223, 228, 409, 436, 458, 461, 462 Grattan v. National L. Ins. Co., 16 Hun, 74. 250, 803, 452, 461 Grattan v. Metropolitan L. Ins. Co., 24 Hun, 43. 461 Graves v. Washington M. Ins. Co., 12 AUen, 391. 436 Gray ». Christian Soc, 137 Mass. 329. s. e. 60 Am. Rep. 310. 89, 100,101, 102 Gray v. National Ben. Assn., Ill Ind. 531 ; 11 N. East. Rep. 477; 9 West. Rep. 289. 4l'7, 465 Gray v. Raper, L. R. 1 C. P. 694. 128 Greggo. Mass. Med. Soc, 111 Mass. 185. 442 Greeley o. Iowa State Ins. Co., 50 la. 86. 381 Green v. African, etc., Soc. 1 Serg. & R. 254. 85, 100, 103, 442 Greeno i-. Greeno, 23 Hun, 478. 236, 237, 239, 241, 307 Greene v. Lycoming F. Ins. Co., 91 Pa. 387. 426 Greenfield v. Mass. Mut. L. Ins. Co., 47 N. Y. 430. 436 Greenwood v. Maddox, 27 Ark. 658. 256 Green v. Marsden, 1 Drew, 661. 266 Greene v. RepjablicF. Ins. Co., 84 N. Y. 572. 297 Green v. Watkins, 6 Wheat. 260. 104 Greenwood v. Murray, 28 Minn. 120. 260' Griffin v. Western Mut. B. Assn., 20 Neb. 620; 31 N. W. Rep. 122. 839 Giinham v. Card, 7 Ex. 833; 21 X.. J. Ex. 321. 94 Grossmann v. Supreme Lodge, etc.. Sup. Ct. N. Y. (1888). 216 Grosvenpr v. United Society, etc., 118 Mass. 78. 69, 75, 106, 107 Guardian Mut. L. Ins. Co. i>. Hogan, 80 III. 35; 22 Am. Rep. 180. 250, 426, 454 Gundlach v. Germania Mech. Assn., 4 Hun, 339; 49 How. Pr. 190. 80, 83, 92, 187, 266. H. Hackney v. Alleghany Mut. Ins. Co., 4 Pa. St. 185. 42e Haden v. Farmers' & M. F. Ins. Co., 80 Va. 683. 270- Hagadorn v. Conn. M. L. Ins. Co., 22 Hun, 249. 462 Hale V. Mechanics' Mut. F. Ins. Co., 6 Gray, 169; 66 Am. Dec. 410. 147, 157, 171, 426. HaU V. Supreme Lodge Knights of Honor, U. S. Cir. Ct. E. D. Ark., 24 Fed. Rep. 450. 74, 107, 148, 379, 385 Hall V. People's Ins. Co., 6 Gray, 185. 204, 427, 44a HaUan v. Gardner, 5 Ky. L. Rep. 857. 267 HaUock V. Commercial Ins. Co., 26 N. J. L. 263; 27 N. J. L. 645; 72 Am. Dec. 379. 270, 272' Hallo wel v. Phlpps, 2 Whart. 376. 257- Hamilton «. Cummings, 1 Johns. Ch. 517. 286. xlviii TABLE OF CASES. [The references are to the sections.] Hammerstein v. Parsohs, 29 Mo. App. 509. 236, 258 Hammond v. Americsn Mut. L. Ins. Co., 10 Gray, 306. 368 Hancock v. Am. L. Ins. Co., 62 Mo. 121. • 470 Hancock v. N. J. L. Ins. Co., 13 Am. L. Keg. (n. S.) 103. 356 Hanley ». L. Assn., 69 Mo. 380. 433 Hanson V. Milwaukee, etc., Ins. Co., 45 Wis. 321. 468 Hanthome v. Brooklyn L. Ins. Co., 5 Mo. App. 73. 373 Hardie ». St. Louis M. L. Ins. Co„ 26 La. Ann. 242. 174, 175 Hardin v. Trustees Second Baptist Ch., 51 Mich. 137. 442 Harley v. Heist, 86 Ind. 196; 44 Am. Rep. 285. 292, 297, 299, 304, 460 Harman v. Lewis, 24 Fed. Rep. 97. 530, 807 Harmon v. Dreher, 1 Speer's Eq. 187. 77, 103, 110. Harmstead v. Washington Fire Co., 8Phila. 331. 101 Harnickell v. N. T. L. Ins. Co., 40 Hun, 558. 276 Harp V. Granger's Mut., etc., Ins. Co. 49 Md. 309. 270 Harper v. Raymond, 3 Bos. 29. 29 Harper v. Phoenix Ins. Co., 19 Mo. 50G. 339 Harrington v. Workingmen's Assn., 70 Ga. 340. 91, 94, 103, 107, 414 Harris' Estate, 74 Pa. St. 452. 257 Harrison v. City Fire Ins. Co., 9 Allen, 233. 126 Harrison v. Hartford F. Ins. Co., 80 Fed. Rep. 862. 282 Harrison v. Heathome, 6 M. & G. 81. 86 Harrison ». Hoyle, 24 Ohio St. 254. 94 Hartford v. Chipman, 21 Conn. 488. 286 Hartford Fire Ins. Co. «. Dav- enport, 37 Mich. 609. 184 Hartford L. & A. Ins. Co. v. Gray, 80 111. 28; 91 HI. 159. 230, 427, 457, 458 Hartford Prot. F. Ins. Co. v. Harmer, 2* Ohio St. 452. 413 Hartford F. Ins. Co. v. Smith, 8 Colo. 422. 404, 412 Hartford F. Ins. Co. v. Web- ster, 69 HI. 39 • 464 Hartford F, Ins. Co. v. WUcox, 57 m. 180. 178 Hartigan v. International, etc., Soc. 8 Low. Can. Jnr. 203. 226 Hartman v. Keystone Ins. Co., 21 Ba. St. 478. 228, 330, 463 Hartwell v. Alabama Gold L. Ins. Co., 33 La. Ann. 1353. 231 Harvey v. La Cle, etc., Ram- say's App. Cas. (Low. Can.) 378. 426 Hascall v. Cox, 49 Mich. 436. 260 Haskin v. Agricultural F. Ins. Co., 78 Va. 707. 270 Haskins v. Kentucky Granger's Mut. Ben. Soc. 7 Ky. L. Rep. 371. 380 Hassler v. Phila. Mus. Assn., 14 Phila. 233. 100 Hatch V. Mut. L. Ins. Co., 120 Mass. 550. 330, 340 Hathaway o. National L. Ins. Co., 48 Vt. 335. 334, 462 Hathaway v. Trenton M. L. Ins. Co., 11 Cush. 448. 824 Hawes V. New Eng. Ins. Co., 2 Curtis C. C. 229. 462 Hawke v. Niagara, etc., Co., 23 Grant's Ch. Up. Can. 139. 408 TABLE OF CASES. xlix [The references are to the sections.] Hawkshaw «. Snp. Lodge Knights of Honor, 29 S'ed. Rep. 770. 355, 384, 414 Hay V. Star r. Ins. Co., 77 N. T. 336. 279, 443, 446 Hayes v. Union Mnt. L. Ass. Co., 44 Up. Can. Q. B. 360, 471 Hayner «. American Popular L. Ins. Co., 69 N. Y. 435. 364, 374 Hazard «. Franklin Mut. ^X*. Ins. Co., 7 R. I. 429. 423 Head v. Providence Ins. Co., 2 Cranch, 166. 137 Heam v. Eqoitable Ins. Co., 3 ClifiE. S28. 184 Heath «. Goslin, 80 Mo. 810. as, 36, 112, 128 Heath v. N. Y. Gold Exchg. 7 Abb. Pr. (N. s.) 251; 38 How. Pr. 168. 89, 91 Heaton v. Manhattan F. Ins. Co., 7 R. I. 602. 366 Hebden v. West, 8 Best & Sm. 679; 32 L. J. Q. B. 85; 9 Jar. (N. 8.) 747; 7L. T. 854; 11 W. R. 422. 260, 803 Helm V. Metropolitan L. Ins. Co., 7 Daly, 636. 373 Heiman v. Phoenix M. L. Ins. Co., 17 Minn. 163. 267, 273 Heiss, Exr., etc. v. Murphy et al., 40 Wis. 276. 258 HeUenburg v. District No 1, 94 N. Y. 580. 144, 167, 161, 164, 236, 237, 239, 241, 243, 321. Helme v. Philadelphia L. Ins. Co., 61 Pa. St. 107. 362, 376 Helnietag v. Miller, 76 Ala. 183. 303, 396 Hendrickson v. Shotwell, 1 N. J. Eq. 577. 72, 78 Henepin v. Brotherhood of Gethemane, 38 Am. Rep. 298; 27 Minn. 460. 44 Hennessy v. New York M. M. Ins. Co., 1 Old (Nov. Sc.) 259. 467 Henry v. Gilliland, 108 Mich. 467. 424 Henry v. Jackson, 37 Vt. 431. 38 Henry v. Trustees Grand Lodge, etc., 16 Br^dw. 151. 469 Hercules M. L. Ass. Soc, Inre, 1 Ins. L. J. 876. 474 Herlumer v. Rice, 27 N. Y. 1.63. 268 Hermano «. Mildred, 9 Q. B. 530. 176 HerrcHi v. Peoria, etc., Ins. Co., 28 ni. 235. 464 Hess «. Wertz, 4 Serg. & R. 356. 85 Hibemia M. F. Ins. Co. «. Meyer, 39 N. J. L. 482. 436 Hicfa^, In re, 10 Ir. B. Eq. 117 C-A. ' 398 Higbie v. Guardian M. L. Ins., Co.. 63 N. Y. 603. 199, 213, 223, 234, 462 Higgins V. Phoenix Mut. L. Ins. Co., 74 N. Y. 9. 204, 223 Higgins a. Windsor, etc., Ins. Co., 64 Vt. 270. 445 Highland v. Highland, 109 111. 366. 239, 244, 306, 307 Hill V. Beach, 12 N. J. Eq. 81. 35 Hill V. Fiazier, 22 Pa. St. 320. 143 Hill V. Merchants, etc., Ins. Co., 28 Grant Ch. Up. Can. 660. - 377 HiU V. Millville Mut., etc., Ins. Co., 89 N. J. Eq. 66. 278 Hillock V. Traders' Ins. Co., 54 Mich. 531. 471 HiUs V. Sherwood, 48 Cal. 398. 312 TABLE OF CASES. [The references are to the sections.] Hillyard v. Mnt. Ben. L. Ins. Co., 33 N. J. L. 415. 356( Htnkley v. Blethen, 78 Me. 221 ; 3 Atl. Eep, 665; 1 N. Eng. Rep. 794. 75, 441 Hiss V. Bartlett, 3 Gray, 468. 99 Hoare v. Bremidge, L. B., 8 Ch. App. 22. 286 Hobbs V. Memphis Ins. Co., 1 Sneed, 444. 297 Hobby B.*Dana, 17 Barb. 114. 199 Hodge's Appeal, 8 W. N. C. (Pa.) 209. 260 Hodge V. Security Ins. Co., 33 Hun, 583. 276 Hodgkins v. Montgomery, etc., Ins. Co., 34 Barb. 213. 408 Hodsdon o. Guardian L. Ins. Co., 97 Mass. 144. 872 HofCman v. ^tna Fire Ins. Co., 32 N.T. 405; 1 Rob. 501. 179,471 HofCman v. John Hancocfe: L. Ins. Co., 92 U. S. 161. 369 HofEman v. Sup. Counc. Am. Leg. of Honor, 35 Fed. Rep. 252. 431 Hogins V. Sup. Counc. Cham- pions of the Red Cross, 18 Pac. Rep. 125. 323, 326, 414 Hogle V. Guardian L. Ins. Co., 6 Robt. 567. 302 Holabird v. Atlantic Ins. Co., 2 Dili. 166; 2 Ins. L. J. 588. 250 Holland v. Smith, 6 Esp. 11. 397 Holland v. Taylor, 111 Ind. 121 ; 12 N. East. Rep. 116; 9 West. Rep. 606. 161, 291, 304, 306, 307, 321 HoUis V. State Ins. Co., 66 la. 454. 435 Hollister v. Quincy Ins. Co., 118 Mass. 478. 382, 383 HoUoman v. Life Ins. Co., 1 Woods C. C. 674. 234, 427, 469 Holly V. Metropolitan L. Ins. Co., 106 N. T. 437; 11 N. East. Rep. 507; 7 Cent. Rep. 263. 37S Holman v. Continental L. Ins. Co., 64 Conn. 196; 2 N. Eng. Rep. 833. 378 Holmes v. Higgins, 1 B. & C. 74. 86 Holterofi v. Mut. Ben. L. Ins. Co., Cin. Superior Ct., 4 Big. L. & A. Ins. Cas. 395. 328 Home Ins. Co. v. Baltimore W. Co., 93 U. S. 646. 436 Homelns. C*. v. Gaddis, 3 Ky. L. Rep. 169; Ky. Ct. App. 436 Home, etc.. Life Assn. v. Gil- lespie, 110 Pa. St. 88; 1 Atl. Rep. 340; I Cent. Rep. 134. 236 Home Ins., etc., Co. v. Lewis, 48 Tex. 622. 281 Home Ins. Co. v. Lindsey, 26 OMo St. 348. 403 Home Ins., etc., Co. v. Myer, 93 111. 271. 281, 446 Home L. Ins. Co. v. Pierce, 76 111. 426. 362, 426, 43S Home Ins. Co. v. Stanchfleld, 2 Abb. C. C. 1; 1 Dill. C. C. 424. 285, 287 Homer v. Guardian Mut. L. Ins. Co., 67 N. Y. 478. 366 Hone V. Van Schaick, 3 If. T. 538. 267 Hooper v. Accident Death Ins. Co., 5H. &N. 546; 29 L. J. Ex. 340; 8 W. R. 816; 6 H. &N. 557; 29L. J. Ex. 484; 7 Jur. (N. s.) 74 Ex. Ch. 895a Hooper v. Robinson, 98 TJ. S. 528. 469 Hopkins v. Hawkeye, Ins. Co., 57 la. 203. 362, 466 TABLE OF CASES. [The references are to the sections.] Hopkinson o. Marquis of Ex- eter. 37 L. J. Ch. 173; 5 L. B. Eq. 68: 16 W. R. 266. 91, 99, 101, 103, 105, 106, 108, 442 Hopson o. Commonwealth, 7 Bush, 644. 2S7 Horn V. Amicable, etc., Ins. Co., 64 Barb. 81. 230a Horn V. Anglo-Australian, etc.. Ass. Co., 30 L. J. Ch. 511; 7 Jut. (n. s.) 673; 9 W. R. 359; 4 L. T. (N. S.) 142. '330, 340 Horn e. Cole, 51 N. H. 287. 362 Horsborg v. Baker, 1 Pet. 232. 285 Horsely «. Bell, 1 Brown Ch. 101. 112, 128 Horton v. Equitable Ii. A. Soc, C. C. P. N. T.; 2 Big life & Ac. Ins. Cas. 108. 231 Hotel Men's Ben. Assn. ». Brown, 33 Fed. Rep. 11. 307 Hough V. City Fire Insurance Co., 29 Conn. 10; 76 Am. Dec. 581. 153, 458 Houghton V. Manufacturers' Ins. Co., 8 Met. 114; 41 Am. Rep. 489. 199, 219 Houghton V. Kendall, 7 AUen, 72. 260 How V. Mutual L. Ins. Co., 80 N. T. 32. 371, 372 Howard v. City F. Ins. Co., 4 Denio, 502. 471 Howard o. Continental L. Ins. Co., 48 Cal. 229. 366, 369 Howard v. Mut. Ben. L. Ins. Co., 6 Mo. App. 577. 355 Howard v. Savannah, etc., Charlt. 223. ' 85 Howard Ins. Co. v. Bruner, 23 Pa. St. SO. 169 Howell V. Knickerbocker L. Ins. Co., 44 N. Y. 276. 355, 362, 370 Howland v. Continental L. Ins. Co., 121 Mass. 499. 368 Hoyle V. Plattsburg, etc., R. R. Co., 64 N. Y. 314; 18 Am. Rep. 695. ISl Hoyt V. Mut. Ben. L. Ins. Co., 98 Mass. 539. 276, 363 Hoyt V. N. Y. L. Ins. Co., 8 Bosw. 440. 260, 303 Huckman v. Fernie, 3 M. & W. 605; 1 H. & H. 149; 2 Jur. 444. 230a Hudson V. Knickerbocker L. Ins. Co., 28 N. J. Eq. 167. 369, 378 Hnghefi «. Hughes, 12 B. Mon. 121. " 267 Hughes V. Piedmont & Arling- ton L. Ins. Co., 56 Ga. 111. 373 Huguenin o. Ray ley, 6 Taunt. 186. 213 Hull V. HuU, 21 N. Y. 647. 385 Hull V. Northwestern Ins. Co., ■ 39 Wis. 397. 366, 373 Humboldt Ins. Co. v. Johnson, 91 111. 92; IBradw. 309. 446, 447 Hunt D. Supr. Council Chosen Friends (Mich.), 7 West. Rep. 875; 31 N. W. Rep. 576. 226 Hurd V. City of Elizabeth, 41 N. J. L. 1. 477 Hutchins v. Byrnes, 9 Gray, 367. 139 Hutchinson v. Lawrence, 67 How. Pr. 38. 106 Hutchinson v. Wheeler, 3 Al- len, 577. 36, 297, 302 Hutton V. Waterloo, etc., Soc, 1 F. & F. 735. 230a Hyde v. Goodnow, 3 N. Y. 269. 175 Hyde v. Woods, 2 Sawyer, 655, affd. 94 TJ. S. 623. 37, !59 lii TABLE OF CASES. [The references are to the sections.] I. lU. Cent. Ins. Co. v. Wolf, 37 lU. 864. 353 Dl. Masons B. Soc. v. Baldwin, 86 m. 479. 51, 386, 431, 432, 467 111. Masons' B. Soc. ». Win- throp, 85 111. 537. 51, 216, 232, 234 111. M. F. Ins. Co. 0. Archdea- con, 82 ni. 236. 448 Imperial F. Ins. Co. v. Murray, 73 Pa. St. 13. 412 Imperial F. Ins. Co. v. Shrimer, 96 m. 580. 471 Indiana F. Ins. Co. v. Hartwell, 100 Ind. 566. 408 Indiana, etc., Ins. Co., v. Kout- ledge, 7 Ind. 25. 443 Independent Order of Mut. Aid „. Paine, 122 111. 625; 11 West. Rep. 701; 14 N. East. Rep. 42. 40, 41, 424 Inderwick v. Snell, 2 Mac. & G. 216, 221. 103 Indianapolis v. Grand Master, 25 Ind. 518. 44 luglis V. Sailors' Snug Harbor, 3 Pet. 99. 38 Inland, etc., Co. v. StaufEner, 33 Pa. St. 397. 405 Inman v. Western F. Ins. Co., 12 Wend. 462. 406 Innes v. Wylie, 1 Car. & E. 262. 89, 91, 101,' 102 Insurance Co v. Bailey, 13 Wall. 616. 285 Insurance Co. v. Bonner, 86 Ohio St, 51. 372 Ins. Co. V. Brame, 9617. S. 764. 402 Insurance Co. v. Colt, 20 Wall. 660. 273, 366 Ins. Co. V. Davis, 96 tJ. S. 425. 369 Ins. Co. V. Dutcher, 96 U. 8. 269. 873 Ins. Co. V. Eggleston, 96 V. 8. 572. 360, 367, 432 Insurance Co. v. Fletcher, 117 V. S. 519. (See N. Y. L. Ins. Co. I,. Fletcher.) 367 Insurance Co. v. Foley, 106 U. S- 350. 231 Ins. Co. V. Garland, 108 lU. 220; 9 Bradw. 571. 299 Insurance Co. v. Gridley, 100 U. S. 614; 205a, 469 Insuriince Co. v. Hogan, 80 111. 35; 22 Am. Hep. 180. 249 Insurance Co. v. Johnson, 23 Pa. St. 72. 270 Ins. Co. V. Mahone, 21 Wall. 152. 153,221,222,278,428 Ins. Co. e. McGookey, 33 Ohio St. 556. 464 Insurance Co. v. MUler, 39 Ind. 475. 214 Insurance Co. v. Morse, 20 Wall. 445. 87, 94, 450, 472 Ins. Oo.o. Mo wry, 96 U. S. 544. 156, 183, 184, 323, 360, 425 Ins. Co. V. Norton, 96 XT. S. 234. 367, 426, 436 Insurance Co. v. Robinson, 40 Ohio St. 270. 372, 373 Insurance Co. v. Rodel, 96 U. S. 232. 334, 407 Insurance Co. v. Schmidt, 40 Ohio St. 112. 471 Ins. Co. V. Seaver, 19 Wall. 631. 339 Insurance Co. v. Slaughter, 12 Wall. 404. 177 Ins. Co. V. Stanchfield, 1 DUl. C. C. 431. 286 Ins. Co. ». Tnllidge, 39 Ohio St. 240. 376, 433 Insurance Co. v. Wilkinson, 18 Wall. 222. 163, 164, 160, 171, 192, 221, 222, 236, 278, 279, 367, 428, 468 TABLE OF CASES. liii [The references are to the sections.] Insurance Co. e. Wolff, 95 TJ. S. 326. 362, 367, 427 Insurance Co. v. Young. 23 Wall. 85. 269, 270, 429a Ins. Co. N. A. V. Brim, 111 Ind. 281; 12 N. East. Hep. 315; 9 West. Eep. 830. 443 Ins. Companies b. Boykin, 12 Wall. 433. 403 Ireland v. Ireland, 42 Hun, 312. 306,.307, 309 Irish Catholic, etc, v. O'- Shaughnessy, 76 Ind. 191. 464 Irving V. Excelsior Ins. Co., 1 Bosw. 507. 471 Irwin's Appeal, 106 Pa. St. 176; 51 Am. Rep. 616. 260 Irwin V. Springfield, etc., Ins Co., 24 Mo. App. 146. 407 3. Jackman v. Nelson (Mass.), 17 N. E. Bep. 529; 6 N. Eng. Bep. 616. 367 Jackson v. Campbell, 6 Wend. 572. 143 Jackson v. Forster, 5 Jnr. (n. s.) 547; 1 El. & Bl. 463; 2 Big. L. & Ace. Ins. Cas. 567. 332 Jackson v. Southern, etc., Ins. Co., 36 Ga. 429. 410 Jackson e. Staats, 11 Johns. 337. 257 Jacobs V. Jacobs, 16 Bear. 657. 260 Jacobs «. National Ii. Ins. Co., 1 McArthur, 632; 5 Big. L. & Accident Ins. Cas, 42; 4 Ins. L. J. 339. 336 Jafiers v. BadclifC, 10 N. H. 242. 470 James v. Emery, 8 Taunt. 246. 462 Jamieson v. Knights Templar, etc., Assn., 12 Cin. L. Bui. 272 (Superior Ct. Cin.). 260 Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; 22 Am. Dec. 667. 196, 198, 199, 462 Jeffries e. Union Mut. L. Ins. Co., 1 McCrary, 114; 1 Fed. Rep. 450; 22 Wall. 47. 181, 197, 199, 208, 212, 226, 323 Jennings v. Chenango, etc., Ins. Co., 2 Denio, 76. 198, 154,458 Jenkins v. Quincy Mut. Ins. Co., 7 Gray, 370. 458 Jennings v. Quincy M. P. Ins. Co., 7 Gtay, 370. 464 Jessel V. Williamsburg Ins. Co., 3 Hil!, 88. 297 Jewett V. Home Ins. Co., 29 la. 662. 424 Johnson v. Ames, 11 Pick 173. 262 Johnson v. Conn. F. Ins. Co., (Ky. Ct. App.) 8 Ky. L. Rep. 460; 2 S. W. Rep. 151. 424 Johnson v. Lyttle's Iron Agency, 5 Chan. Div. 687. 389 Johnson v. Southern Mut. L. Ins. Co., 79 Ky. 403. 373, 431 Johnson «. Van Epps, 14 BradW. 201; 110 III. 551. 296, 306 John Hancock Mut. L. Ins. Co. V. Daly, 65 Ind. 10. 231, 460, 469 John Hancock Mut. L. Ins. Co. V. Moore, 34 Mich. 41. 331, 334, 470 John's Island Church Case, 2 Rich. Eq. 215. 78 Jones V. Brooklyn L. Ins. Co., 61 N. Y. 79. 469 liv TABLE OF CASES. [The references are to the sections.] Jones V. Consolidation Ins. Ass. Co., 26 Beav. 256; 6 Jut. (n. s.) 214; 28 L. J. Ch. 66 ; 3 Big. I>. & Ace. Ins. Gas. 192. 332 Jones Manufactviring Co. v. Mannfactarers' Ins. Co., 8 Gush. 83; 54 Am. Dec. 742. 199 Jones V. National, etc., Assn. (Ky.),2 S. W. Eep. 447; 7 Ky. L. Eep. 1. 106, 142, 286, 359 JudMns V. Union Mut. F. Ins. Co., 39 N. H. 172. 443 Kain ». Gibboney, 101 U. S. 362. 38 Kaiser v. Kaiser, 13 Daly, 522. 260 Kansas Prot. Union v. Whitt, 36 Kan. 760; 14 Pac. Eep. 276. 372, 406, 413, 436, 453, 466 Kantrener v. Fenn., etc., Ins. Co., 5 Mo. App. 581. 174, 364, 413, 436 Kan% V. Improved Order, etc, 13 Mo. App. 341. 444 Karcher v. Supreme Lodge K. of H., 137 Mass. 368. 103, 106, 107, 148, 385, 414 Kansal v. Minnesota Fanners, etc., Ins. Co., 31 Minn. 17; 47 Am. Rep. 776. 153, 166, 192, 221, 426, 458 Kanz V. Great Council, etc., 13 Mo. App. 341. 470 Kean v. Roc, 2 Harr. (Del.) 103. 257 Keaiy v. Mut. Reserve F. L. Assn., 30 Fed. Eep 369. 462 Keasley v. Codd, 2 Car. & P. 408. 35 Keels V. Mut. Reserve F. L. Ins. Assn., 29 Fed. Rep. 198. 329, 336, 471 Keeno. Johnson, 9 N.J. Eq. 401. 38 Eeenan v. Miss., etc., Ins. Co., 12 la. 126. iSe Kehlenbeck v. Logeman, 10 Daly, 447. 89, 442 Eeun V. Home Mut. F. Ins. Co., 42 Mo. 38; 97 Am. Dec. 291. 197, 443. Keith V. Globe Ins. Co., 62 111. 618. 278 KeUy B. Ancient Order of Hi- bernians, 9 Daly, 289. 98 Kelly n. St. Louis M. L. Ins. Co., 3 Mo. App. 554. 273 Kelsey v. Universal L. Ins. Co., 35 Conn. 225. 181, 460 Kensington National Bank v. Yerkes, 86 Pa. St. 227. 182 Ky. Grangers, etc., Soc. v. Howes, 9 Ky. Law Rep. 198. 296 Kent V. Quicksilver Mining Co., 78 N. r. 159. 80, 82, 84, 92 Ky. Masonic M. L. Ins. Co. v. MiUer, 13 Bush, 489. 95, 168, 236, 237, 244, 264, 264, 296, 307, 311, 321. Kentucky, etc., Ins. Co. v. Southard, 8 B. Mon. 634. 198 Kepler v. Sup. L. Knights of Honor, 45 Hun, 274. 239 Kerman v. Howard, 23 Wis. 108. 293 Kern v. South St..L. M. Ins. Co., 40 Mo. 19. 462 Kerns v. New Jersey M. L. Ins. Co., 86 Pa. St. 171. 372 Ketchnm v. Prot. Ins. Co., 1 Allen (N. B.) 136. 445, 447 Keteltas v. Keteltas, 72 N. Y. 312 260 Keystone Mut. Ben. Assn. v. Norris, 116 Pa. St. 446; 19 W. N. C. 248; 7 Cent. Rep. 204; 8Atl. Rep. U38. 249, 302, 44- TABLE OF CASES. Iv [The references are to the sections.] Kibbe V. Hamilton M. Ins. Co., II Gray, 163. 458 Kill V. Hollister, 1 Wlls. 129. 460 Eillips V. Putnam F. Ins. Co., 28 Wis. 472. 405, 445 EimbaU v. .Stna Ins. Co., 9 Allen, 540. 196, 208, 217, 323 Eimball v. Oilman, 60 N. H. 64. 292 EimbaU v. Howard F. Ins. Co., 8 Gray, 33. 405 Eimball v. Stoiy, 108 Mass. 382. a60a King V. Hekla F. Ins. Co., 68 Wis. 508. 413, 436 Kingsley v. N. Eng. M. F. Ins. Co., 8 Cosh. 393. 406 Elrkpatrick v. Eagle Lodge, 26 Ean. 384. 441 Eistler v. Indianapolis, etc., R. B. Co., 88 Ind. 460. 94 Klein v. Ins. Co., 104 U. S. 88. 364, 365 Kline v. National Ben. Assn., III Ind. 462; 11 N. East. Bep. 620; 9 West. Bep. 284. 363, 383 Knapp V. Homeopathic L. Ins. Co., 117 U. S. 411. 373 Knecht v. Mnt. Ii. Ins. Co., 90 Pa. St. 118; 36 Am. Bep. 641. 208, 231, 323, 826 Knickerbocker Ins. Co. v. Corn- stock, 16 Wall. 258. 474 Knickerbocker L. Ins. Co. v. Dietz, 52 Md. 16. 372 Knickerbocker Ins. Co. v. Gonld, 80 111. 388. 412, 436, 471 Knickerbocker Ii. Ins. Co. v. Harlan, 66 Miss. 512. 372 Knickerbocker I». Ins. Co. v. Heidel, 8 Lea, 488. 184 Knickerbocker Ins. Co. v. Pen- dleton, 112 U. S. 696. 413, 436 Knickerbocker L. Ins. Co. v. Peters, 42 Md. 414. 334 Knickerbocker L. Ins. Co. v. Trefz, 104 U. S. 197. 216, 234 Knight V. Hut. L. Ins. Co., 14 Phila. 187; 9 W. N. C. 501. 323 Knights of Honor v. Nairn, 60 Mich. 44; 26 N. W. Eep. 826. 36, 168, 240, 244, 246, 247, 264, 265, 307, 309, 311, 312. Knox V. Lycoming F. Ins. Co., 60 Wis. 671. 281, 426 Knox V. Turner, 5 L. B. Ch. 616; 39 L. J. Ch. 750; 23 L. T. R. 227; 18 W. B. 873. 397 Koehler v. Black River Falls Iron Co., 2 Black, 716. 181 Koehler v. Brown, 2 Daly, 78. 36, 143 Koehler v. Centennial M. L. Ins. Co., 66 la. 325. 257 Koehler v. Phoenix Mnt. L. Ins. Co., 4 Ky. L. Bep. 903. 373 Koelges v. Guardian L. Ins. Co., 2 Lans. 480. 366 Koenig o. Globe M. L. Ins. Co., 10 Hun, 568. 462 Kohen v. Mut. Beserve Fund L. Assn., 28 Fed. Rep. 705. 272 Kohne v. Insurance Co., etc., 6 Blnn. 219; 1 Wash. C. C. 93. 278 Kom «. Mut. Assn. Soc, 6 Cranch, 192. 188 Kmgh «. Lycoming F. Ins. Co., 77 Pa. St. 16. 28 Labouchere s. Earl of Whom- cUfEe, L. B. 13 Ch. Div. 346; 41 L. T. 638; 28 W. R. 367. 101, 103, 442 Lafond et al. v. Deems, 81 N. Y. 614. , 28, 30, 74, 103, 107 Ivi TABLE OF CASES. [The references are to the sections.] Lamb o. Bowser, 7 Biss. 316. 176 Lambert v. Addison, 46 L. T. 20. 102, 108 Lamberton v. Conn. F. Ins. Co. (Mlml.), 39 N. W. Kep. 76. 422 Lamont V. Grand Lodge la. L6g. of Honor, 31 Fed. Eep. 177. 64, 169, 171, 246, 265, 311 Lamont v. Hotel Men's Mut. Ben. Assn., 30 Fed. Bep. 817. 64, 245, 265, 302, 306, 311 Lampet's Case, 10 Kep. 48&. ' 237 Lamphere v. Grand Lodge A. O. U. W., 47 Mich. 429. 72, 78, 377 Lancaster v. Washington L. Ins. Co., 62 Mo. 121. 470 Landis v. Home, etc., Ins. Co., 56 Mo. 591. 448 Landrnm v. Enowles, 22 N. J. Eq. 594. 292, 429 Lane «. Brainerd, 30 Conn. 577. 138 Lane *. Drinkwater, 1 C. M. & is. 612. 462 Langdon v. Union M. L. Ins. Co., 14 Fed. Bep. 272. 163, 214, 223, 802, 428 Lanning o. Carpenter, 48 N. T. 408. 283 Lantalnm v. Anchor M. Ins. Co., 22 N. B. 14. 480 Lasher v. Northwestern, etc., lira. Co., 66 How. Pr. 318. 431 Lasker v. Kenton ins. Co., 68 N. H. 469. 443 Law V. Lond. I. ^. Co., 3 Eq. B. 338 ; 1 Kay & J. 223 ; 24 L. J. Ch. 196; IJur. (N. s.) 178. 248, 802 Lawrence v. Mut. L. Ins. Co., 6 Bradw. 280. 329, 471 Lazarns v. Commonwealth Ins. Co., 19 Pick. 81. 298 Lazensky v. Snpr. L. E. of H., 31 Fed. Bep. 692. 406, 413, 414, 436, 460 Lea V. Hinton, 6 Se G. M. & G. 823. 250, 396 Leach v. Leach, 8 Jnr. 211. 470 Leach v. Bepublic F. Ins. Co., 68 N. H. 246. 443 Leadbetter v. MtoA Ins. Co., 13 Me. 265. 410 Lebanon Mut. Ins. Co. o. Hoover, 18 W. N. C., 223. 366 Lebanon Ins. Co. v, Kepler, 100 Fa. St. 28 204, 427 Lee V. Abdy, 17 Q. B. Div. 309. 298 Leach «. Harris, 2 Brewst. 671. 28, 35, 37, 38, 62, 69, 96, 97, 112, 121, 144, 442 Lee V. Murrell, 7 Ky. Law Rep. 598. 294, 298 Lee V. Pittsburgh Coal, etc., Co., 66 How. Pr. 376. 127 Lee «. Howard Fire Ins. Co., 3 Gray, 584. 147 Leigh V. Knickerbocker Ins. Co., 26 La. Ann. 436. 368 Lemacks t>. Gloyer, 1 Bich. £q. 160. S6T Lemon V. Phoelflx M. L. Ins. Co., 38 Conn. 294. 249, 292, 296, 299, 806, 429 Leonard «. Am. Ins. Co., 97 Ind. 299. 165, 157, 168, 171, 426 Leslie V. French, 23 Ch. D. 662; 63 L.J. Ch. 762; 48 L. T. 564; 81 W. B. 661. 898 Leslie v. Knickerbocker L. Ins. Co., 63 N. Y. 27. 861, 862 Levy ». Peabody Ins Co., 10 W. Va. 560. 486 Levy«.Xaylo*,66Tex.662. 81^, 39» Lewis V. Phoenix M. L. Ins. Co., 39 Colm. 100 ; +4 Conn. 73. 164, 222, 250, 426, 431 TABLE OF CASES. Ivii [The references are to the sections.] Levis e. Tilton, 6i la. 220; s. c. 62 Am. Rep. 436. 36, 112, 116, 128 Liberty Hall Assn. v. Honsa- tonic M. F. Ins. Co., 7 Gray, 261. 204, 427 Life Ins. Co. v. Donklee, 16 Kan. 168. 383 Life Assn., etc., v. Foster, 11 Sc. Sess. Cas. (Sd sferles) 861. 233 L. Ins. Co. V. Francisco,' 17 Wall. 672. 407 Life Ins. Co. v. McCrum, 36 Kan. 148; 12 Fac. Bep. 617. 396 L. Assn. V. Fassett, 102 HI. 316 478 Life Association, etc., v. Wal- ler, 57 Ga. 533. 334 Life Insurance Co. v. Pendle- ton, 112 U. S. 696; 116 U. S. 339. 369 Lingenfelter v. Fhcenix Ins. Co., 19 Mo. App 25?. 464 Llnz V. Massachusetts Mut. L. Ins. Co., 8 Mo. App. 363. 226 Little V. Phoenix Ins. Co., 123 Mass. 380. 409, 412, 446 Liverpool L. & G. Ins. Co. v. Creighton, 61 Ga. 96. 460 Liverpool, etc., Ins. Co. v. Ende, 66 Tex. 118. 426 Livingston ti. Lynch, 4 Johns. Ch. 694. 36 Livingston v. Tompkins, 4 Johns. Ch. 416. 286 Lloyd V. Loaring, 6 Ves. 773. 31, 71, 441 Locke V. North American F. Ins. Co., 13 Mass. 61. 217 Lockwood V. Biahop, 61 How. Pr. 221. 303 liOckwood V. Middlesex Mut. Ass. Co., 47 Conn. 563. 406, 406 Lodge «. Weld, 139 Mass. 499. 262 Loehner v. Home M. Ins. Co., 17 Mo. 247. 165 Loehner v. Home Mut. Ins. Co., 17 Mo. 247 468 London Ass. v. Mansel, 11 Ch. D. 363; 48 L.J. Ch. 381; 41 L. T. 226; 27 W. R. 444. 204, 218, 285 London Pipe Co. «. WoodrofEe, 7 B. & C. 838. 88 Longhurst v. Star Ins. Co., 19 loWj, 364. 278 Long Island R. B. Co. In re, 19 Wend. 37; 32 Am. Dec. 429. 99 Loomls V. Eagle L., etc., Ins. Co., 6 Gray, 396. 248, 250, 302, 405 Loos V. John Hancock L. Ins. Co., 41 Mo. 638. 260 Lordv. Dall, 12 Mass. 116; 7 Am. Dec. 38. 21a, 260 Lord Godolphin's Case, 2 Ves. 78. 806 Lorie v. Conn. M. L. Ins. Co., 5 Big. Life & Ace. Ins. Cas. 233. 324 LorillardF.Ins. Co.v. McCul- loch, 21 Ohio St. 176. 204, 427 Loubat V. Leroy, 15 Abb". N. C. 1; 40 Hun. ->"!. 96, 97, UO 101, 103,106,442 Lounsbury v. Prot. ns. Co., 8 Conn. 459. 454 Lovell V. St. L. Mut. L. Ins. Co., Ill U. S. 264. 373 Lowell V. Alliance Life Ins. Co., 3 Cent. L. J. 699. 176 Lowell V. Middlesex Ins. Co., 8 Cush. 127. 468 Lowry et al. v. Stotzeretal., 7 Phila. 397. 67, 69, 124 Low V. Smith, 2 Jur. Pt. 1, 344. 260 Luce V. Dunham, 69 N. Y. 36. , 260 Iviii TABLE OF CASES. [The references are to the sections.] Ziiickombe v. Ashton, 2 Fost. & Finn. 707. 112 Lneders o. Hartford L. & A. Ins. Co., 4 McC. 149; 12 Fed. Kep. 465. 153, 427, 453, 458 Lycoming Ins. Co. v. Bixby, 15 W. N. C. 109. 377 Lycoming Ins Co. v. Whee- lock, 55 Vt. 526. 477 Lycoming Ins. Co. ■». Schref- fler, 42 Pa. St. 188; 44 Pa. St. 269. 471 Lycoming Ins. Co. v. Mitchell, 48 Pa. St. 372. 166 Lycoming F. Ins. Co. ». Dun- more, 76 lU. 14. 411 Lycoming Fire Ins. Co. v. Langley, 62 Md. 196. 153, 155, 158, 477 Lycoming F. Ins. Co. v. Eubln, 79 111. 402. 471 Lycoming Fire Ins. Co. v. Woodworth, 83 Pa. St. 223. 153 Lycoming F. Ins. Co. v. Storrs, 97 Pa. St. 361. 463 Lycoming Mut. Ins. Co. v. Sailer, 67 Pa. St. 108. 463 Lyman v. State M. P. Ins. Co., 14 Allen, 329. 462 Lyon d; Bailroad Passenger Assn. Co., 46 la. 631. 395a, 405 Lyon V. Travelers' Ins. Co., 55 Mich. 141 . 869, 383, 437 Lytleton v. Blackburne, 75 L. J. Ch. 219; 33 L. T. (sr.s.) 641. 101, 442 Mc. McAIees o. Supreme Sitting, etc. CPa-)> 18 Atl. Kep. 675; 12 Cent. Bep. 416. 94 McAllister v. New England M. L. Ins. Co., 101 Mass. 658. 372 McArthur v. Home L. Ins. Assn. (la), 35 N. W. Eep. 430. 153, i:-. McArthur v. Globe Mut. L. Ins. Co., 14 Hun, 348. 426 McCabe r. Father Matthew, etc., 24 Hun, 149. 67, 91, 92, 187 McCall V. Ins. Co., 66 N. T. 505. 278 McCall V. Merchants' Ins. Co., 33 La. Ann. 142. 405 McCall V. Phoenix Mut. Ins. Co., 9 W. Va. 237; 27 Am. Rep. 558. 221, 428 McClure v. Johnson, 56 la. 620. 241 McCorkle v. Texas Ben. Assn. (Tex.), 8 S. W. Rep. 516. 362 McCoy V. Metropolitan L. Ins. Co., 133 Mass. 82. 210 McCraw v. Old North State, etc., Ins. Co., 78 N. C. 149. 358 McCuUey v. Phosnix M. L. Ins. Co., 18 W. Va. 782. 174, 267, 276 McCutcheon's Appeal, 99 Pa. St. 133. 301 McDermottr. Centennial M. L. Ins. Co., 24 Mo. App. 73. 257, 460 McDermott v. Lycoming F. Ins. Co., 12 Jones & Sp. 221. 412 McDonald ». Black's Admr., 20 Ohio St. 185; 55 Am. Dec. 448. 164 McDonald ». Ross-Lewln, 29 Hun, 87. 89, 101, 377, 378, 385 McDonnell v. Carr, 1 Hayes & Jones Irish R. 266. 370 McEvers v. Lawrence, HofE. Ch. 172. 140, 477 McEwen v. Montgomery County, etc., Ins. Co., 6 Hill. 101. 160 McFarland v. Mtsa. Ins. Co., 6 W. Va. 437. 443, 446 McFarland v. Peabody Ins Co.,6W. Va. 425, 445 TABLE OF CASES. lix [The references are to the sections.] McGiitley v. United States Ins. Co., 8 Daly, 890. 460 McGinnis v. Watson, 41 Pa. St. 21. 78 McGraw v. Germania Fire Ins. Co., 54 Mich. U6. 153, 406 Mclnnes v. Western Co., SO Up. Can. Q. B. 680. 460 Mclntyre v. Mich. State Ins. Co., 62 Mich. 188. 443 McEee v. Phoenix Mut. L. Ins. Co., 28 Mo. 383; 75 Am. Dec. 129. 250, 253, 376 McKimm «. Biddle, 2 DaU. 100. 470 McKinley v. Irvine, 13 Ala. 681. 441 McEnight v. Mnt. L. Assn., 16 W. N. C. 400. 453 McLean v. McLean, 6 Humph. 452. 306 McLean v. Eqnltable L. A. Soc, 100 Ind. 127. 159 McLean v. Piedmont, etc., Ins. Co., 29 Gratt. 361; 31 Gratt. 517. 362, 463 McMahon v. Banhr, 47 N. T. 67. 28, 36, 112, 120, 441 McManus v. .Xtna Ins. Co., 6 Allen (N. B.), 314. 411 McMaster r. Insurance Co., 66 N. Y. 288. 471 McMasters o. Westchester, etc., Ins. Co., 26 Wend. 379. 411, 436 McMurry v. Supreme Lodge, etc., 20 Fed. Bep. 107. 161, 389, 414 McNeilly v. Continental L. Ins. Co., 66 N. r. 23. 867 M. Mace V. Cnshman, 46 Me. 260. 260 Mactier v. Frith, 6 Wend. 103. 272 Macrobble v. Accident Ins. Co., 13 Scot. L. Bep. 391. 328 Madeira v. Merchants' Exch., etc., Soc, 16 Fed. Bep. 749; 5 McC. 258. 885 Madison Ins. Co. v. Fellowes, 1 Dis. 217; affirmed, 2 Dls. 128. 253, 443 Madsden v. Phoenix Ins. Co., 1 S. C. 24. 412 Maher v. Hibemia Ins. Co., 67 N. Y. 283. 222, 278, 408, 427, 428 Mair b. Eallway Passenger Assn. Co., 37 L. T. 356. 328 Malleable Iron Works v. Phoe- nix: Ins. Co., 26 Conn. 465. 153, 222, 278 Malone v. Majors, 8 Humph. 677. 257 Mallory v. Traveler's Ins. Co., 47 N. Y. 52; 7 Am. Eep. 410. 219, 386 Manby c. Life Ins. Soc, 29' Beavan, 439 ; 31 L. J. Ch. 94. 103 Mandego v. Centennial, etc., Assn., 64 la. 134. 181, 360, 889 Maneely v. Knights Birming- ham, 115 Pa. St. 805; 7 Cent. Bep. 633; 9 Atl. Eep. 41.. 64, 170, 178, 244, 247, 256, 311, 312 Manhattan L. Ins. Co. «. Broughton, 109 U. S. 121. 384 Manhattan Ins. Co. v. Smith, 44 Ohio St. 156. 292,351,357,360,432 Manhattan L. Ins. Co. v. War- wick, 20 Gratt. 614. 856 Manhattan F. Ins. Co. v. Weill, 28 Gratt. 389. 458 Mann v. Butler, 2 Barb. Ch. 362. 29, 38, 76 Manning v. Sup. Lodge, A. O. U. W. (Ky.), 7 Ky. L. Eep. 761; 6 S. W. Eep. 386 171, 307, 308, 430, 481 Maiming v. Bowman, 3 Nova Scotia Dec. 42. 297 Ix TABLE OF CASES. [The references are to the sections .J Manning o. San Antonio Clnb, 63 Tex. 166 ; s. e. 51 Am. Rep. 639. 89, 91, 101, 442 Hansen v. Grand Lodge, etc., 80 Minn. 509 ; 16 N. W. Eep. 395. 69, 383, 385, 462, 467 Manufacturers, etc., Ins. Co. V. Gent, 13 Bradw. 308. 426 Many v. Beekman Iron Co., 9 Paige, 188. 278 Marck v. Supreme Lodge K. of H., 29 Fed. Rep. 896. 104 Marcus v. St. L. M. L. Ins. Co., 68 N. Y. 625. 297, 298, 432 Mark v. Mtna. Ins. Co., 29 Ind. 390. 177 Mark a. National Ins. Co., 24 Hun, 565; 91 N. T. 663. 450 Markey v. Mut. Ben. Ins. Co., 103 Mass. 92. 270, 276, 353 Markey ». Mut. Ben. L. Ins. Co., 103 Mass. 78 ; 118 Mass. 178; 126 Mass. 158. 276 Marlborough v. Godolphin, 2 Ves. sr. 60. 243 Marr c. Bank of West Tennes- see, 4Coldw. 484. 59, 479 Mars V. Virginia Home Ins. Co., 17 S. C. 514. 459 Mar^h v. Northwestern Nat. Ins. Co., 3 Biss. 351. 369 Marsh v. Lazenby, 41 Ga. 153. 256, 261 Marston v. Dnrgin, 54 N. H. 347. 38, 479 Marston e. Mass. Mut. L. Ins. Co., 59 N. H. 92. 413, 431, 436 Marthinson v. North British, etc., Ins. Co. (Mich.), 31 N. W. Eep. 291; 7 West. Rep. 637. 435 Martin v. Xtaa, L. Ins. Co., 73 Me. 26. 294 Martin v. New Jersey Ins. Co., 44 N. J. L. 273. 431 Martin n. State Ins. Co., 44 N. J. L. 485. 445 Martin v. Webb, 110 U. S. 7. 140 Martine v. International Xi. Ass. Soc, 63 N. T. .'!39; 62 Barb. 181; 5 Lans. 535. 356 Marvin v. Stone, 2 Cow. 806. 179 Marvin e. Universal L. Ins. Co., 85 N. Y. 278. 367, 426 Maryland Mut. Benev. Soc. v. Clendinen, 44 Md. 429; 22 Am. Rep. 52. 24, 161, 236, 237, 239, 241. Mass. Catholic Order Fores- ters V. Callahan (Mass.), 6 N. Eng. Rep. 95; 16 N. East. Kep. 14. 46, 56 Mass. Mut. L. Ins. Co. ». Eshelman, 30 Ohio St. 647. 426 Mass. Mut. L. Ins. Co. b. Kel- logg, 82 m. 614. 454 Mass. Mut. Ij. Ins. Co. v. Rob- inson, 98 ni. 324. 428,452 Mason v. Andes Ins. Co., 25 Up. Can. C. P. 37. 411, 436 Mason v. Atlanta Fire Co., 70 Ga. 604; 48 Am. Rep. 585. 36 Masonic M. Aid Assn. v. Beck, 77 Ind. 203; 40 Am. Rep. 295. 427, 461 Masonic Mut. Ben. Soc. v. Burkhart, 110 Ind. 189 ; 11 N. East. Rep. 449; 7 West. Rep. 627. 161, 236, 237, 306 Mason t». Finch, 28 Mich. 282. 38,74 Masonic Relief Assn. v. Mc- Auley, 2 Mackey, 70. 161, 237, 241, 243, 244, 254, 255, 262, 264. Massey v. Cotton States L. Ins. Co., 70 6a. 794. 429 TABLE OF CASES. Ixi [The references are to the sections.] Massey v. Mut. Belief Soc, 102 N. Y. 523; 7 N. East. Rep. 619; 3 Cent. Rep. 755. 64, 168, 246, 254, 256, 311 Masters v. Madison, etc., Ins. Co., 11 Barb. 624. 160, 278 Matt V. Kom. Cath. M. Pro. Soc, 70 la. 455; 30 N. W. Rep. 799. ^6, 266, 431 May V. Rnckeye Ins. Co., 25 Wis. 291. 454 Mayer r. Equitable Reserve E. L. Assn., 42 Hnn, 237. 131, 386 Mayer v. Mut. L. Ins. Co., 38 la. 304; 18 Am. Rep. 34. 360, 362, 370, 432 Maynard v. Rhodes, 1 C.& F. 360; 6 D. & R. 266. 230a Mayor, etc., v. Brooklyn Ins. Co., 4 Keyes, 465. 323 Mayor, etc., v. Hamilton Ins. Co., 39 N. T. 46. 446 Mayor, etc., v. Solomon's Lodge, 63 Ga. 93. 44 Meacham v. N. T. State Mut. Ben. Assn., 46 Hun, 363. 334 Mead v. Westchester E. Ins. Co., 64 N. Y. 456. 282 Meadowcraft v. Standard F. Ins. Co., 61 Pa. St. 91. 159 Mears v. Moulton, 30 Md. 142. 38, 441 Med. &Surg. Soc. v. Weatherly, 75 Ala. 248. 100, 101, 442 Melly V. Hershberger, 16 W.. N. C. 186. 302 Meister v. Merchants' M. Ins. Co., Manning's Cas. (La.) 169. 465 MelloT's Policy Trusts In re, 6 Oh. Div. 127. 294 Menk V. Home Ins. Co. (Cal.), 14 Pac. Kep. 887, 18 Id. 117. 163, 468 Mentz V. Armenia F. Ins. Cq.j 79 Pa. St. 478. 94, 460 Mercantile Ins. Co. e. Holt- haus, 43 Mich. 423. 411, 436 Mercantile Ins. Co. v. Jaynes, 87 111. 199. 281 Merchants' Bank v. State Bank, 10 Wall. 604. 127 Merchants' Ins. Co. v. Dwyer, 1 Tex. Unrep. Cas. (Posey) 446. 183, 412 Merchants' Mut. Ins. Co. e. La Croix, 35 Tex. 249. 443 Merchants', etc., Ins. Co. v. Vining, 67 Ga. 661; 68 Ga. 197. 408, 413, 436 Merrick v. Germania Eire Ins. Co., 54 Pa. St. 277. 179 Merrill v. Farmers', etc., Ins. Co., 48 Me. 285. 298 Merrill v. N. B. Mut. L. Ins. Co., 103 Mass. 245. 801 Merritt v. Cotton States L. Ins. Co., 65 Ga. 103; 69 Ga. 564. 334, 378 Merserau v. Ins. Co., 66 N. Y. 274. 221, 426 Mershon v. Nat. Ins. Co., 34 la. 87. 431 Metropolitan Life Ins. Go. v. Drach, 101 Pa. St. 278. 179 Metropolitan L. Ins. Co. v. Harper, 3 Hughes, 260. 437 Metropolitan L. Ins. Co. v. Schafer, 9 Cent. Rep. 662; 11 Atl. Hei>. 154; 60 N. J. L. 731. 400 Metropolitan L. Ins. Co. v. McTague, 49 N. J. L. 687; 9 Atl. Rep. 766; 8 Cent. Rep. 611. 210, 234 Meyer v. Knickerbocker L. Ins. Co., 73 N. Y. 516; 61 How. Pr. 263 ; 29 Am. Rep. 200. 860, 362, 364, S76, 432 Ixii TABLE OF CASES. [The references are to the sections.] Miaghanv. Hartford F. Ins. C!o., 12 Hnn, 321. 282 Michael v. Mnt. Ins. Co., 10 La. Ann. 737. 358 Michael v. St. Louis M. F. Ins. Co., 17 Mo. App. 23. 464 Michaad v. British Med. Assn., Ramsey's App. Cas. (Low. Can.) 377. 302 Mictiigan Mut. L. Ins; Co. v. Bowes, 42 Mich. 19. 371 Michoud V. Girod, 4 How. 554. 131 Mickey v. Burlington Ins. Co., 35 la. 174. 445 Mills V. Bebstock, 29 Minn. 880. 337, 414 Miller v. Alliance, etc., Ins. Co., 19 Batchf. 308; 7 Fed. Bep. 649. 412 MUler V. Eagle L. & H. Ins. Co., 9 E. D. Smith, 268. 250, 308, 895, 407 MiUer v. Grable, 2 Denio, 492. 77 Miller v. Georgia Masonic Mnt. L. Ins. Co., 57 Ga. 221. 378 Miller c. Hartford F. Ins. Co., 70 la 704; 29 N. W. Bep. 411. 409, 446 Miller v. Hillsborough F. Assn., 42 N. J. Eq. 460. 426, 431 Miller o. Mut. Ben. Life Ins. Co., 31 la. 216; 7 Am. Bep. 122. 160, 192, 198, 212,214,221, 223, 426, 428 MUler e. Fhcenlx Mnt. L. Ins. Co., 107 N. T. 293; 10 Cent. Bep. 38; 14 N. East. Bep. 271. 225 Miller v. Insurance Co., 12 W. Va. 116. 179 Miller v. L. Ins. C!o., 12 Wall. 285. 277, 353, 366 MUler V. Mnt. Benefit Ins. Co., 84 la. 222. 328 MUler V. Union Cent. L. JuB. Co., 110 m. 102. 870 Mlmick V. Mut. Ben. L. Ins. Co., 3 Brewst. 502. 835 Miner v. Mich. Mut. Bener. Assn: (Mich.), 6 West. Bep. 117; 29 X. W. Bep. 852. 44,161 Miner v. Michigan Mut. Ben. Assn. (Mich.), 29 N. W. Bep. 852. 380 Miner v. Phoenix Ins. Co., 27 Wis. 698: 9 Am. Bep. 479. 153, 221 Miner «7. Trustees, etc. (Mich.), 31 N. W. Kep. 763; 8 W. Bep. 139. 453 Minifie v. BaUway, etc., Co., 44 L. T. 552. 450 Mining Co. v. Anglo-Califor- nian Bank, 104 U. S. 192. 127 Minor v. Mechanics' Bank, 1 Pet. 46. 127, 184 Misselhom v. Mut. Beserve Fund L. Assn., 30 Fed. Bep. 545. 272 Mississippi Valley L. Ins. Co. V. Neyland, 9 Bush, 480. 869 Missouri Valley Life Ins. Co. V. McCrum, 36 Kan. 146; 12 Pac. Bep. 517. 302 Missouri Valley L. Ins. Co. v, Kelso, 16 Kan. 481. 373 Missouri VaUey Ins. Co. v. Stnrges, 18 Kan. 93. 302 Mitc^eU V. Grand Lodge, etc. (la.), 70 la. 3G0; 30 N. W. Bep. 865. 168, 246, 264 Mitchell c. Lycoming Mut. F. Ins. Co., 51 Pa. St 402. 81, 161 MitcheU e. Mut. L. Ins. Co., Bliss L. Ins. 699. 325 MitcheU V. Union L. Ins. Co., 45 Me. 104; 71 Am. Dec. 529. 260, 395 TABLE OF CASES. Ldii [The lefeiences are to the sections.] MItcheU «. Uniyersal L. Ins. Co., 54 Ga. 289. 464 Mobile Ij. Ins. Co. v. Morris, 3 Lea, 101. 460, 469 Mobile I.. Ins. Co. «. Frnett, 74 Ala. 487. 334,431,433,464 Mobile L. Ins. Co. «. Walker, 68 Ala. 290. 237, 463 MofEatt V. Reliance, Mat. L. £as. Soc., 45 Up. Can. Q. B. '561. 369 Moklumne Mining Co. v. Woodbury, U Cal. 434, 436; 38 Am. Dec. 658. 60 Monmouth Mat. !F. Ins. Co. «. LoweU, 59 Me. 504. 377 Monroe, etc, Ins. Co. v. Rob- inson, 5 W. N. C. (Pa.) 389. 219 Montgomery v. Fhosnix: Mat. I.. Ins. Co., 14 Bosh, 51. 373 Moons V. De Bemales, 1 Bass. 307. 470 Moore v. Conn. Mat. I.. Ins. Co., 41 Up. Can. Q. B. 497; 3 Ont. App. 230. 233 Moore r Protective Ins. Co., 29 Me. 97 471 Moore c. State Ins. Co. (la.), 34 N. W. Rep. 183. 183 Moore r. Woolsey, 4 El. & BL 243; 24 L- J. Q. B. 40; 1 Jnr. (X. s.) 468; 2S Eng. L. & Eq. 248. 332, 340 Morey «. Michael, 18 Md. 341. 339 Morey «. N. York Ii. Ins. Co., 2 Woe !s, 664. 355, 367 Morgan v. Petti t, 3 Demarest (N. T.) 161. 367 Morland u. Isaac, 20 Bear. 389; 84 L. J. Ch. 840; 1 Jar. (2f. s.) 989. 397 Morning Star, etc, v. Ebiyslip, 33 Ohio St. 144. 44 MorreU v. Trenton, etc, L. Ins. Co., 10 Cosh. 282; 57 Am. Dec 92. 250 Morrison's Admr. v. Tennes- see, etc, Ins. Co., 18 Mo. 26l' ; 59 Am. Dec. 305. 164 Morrison r. Odd-feUows, etc, In«. Co.. 59 Wis. 163. 80, 187, 216, 232, 436, 427, 460. Morrison v. Ins. Co., etc., (N. H.) 7 Atl. Rep. 378; 3 N. Eng. Rep. 160. 444 Morton v. Barrett, 38 Me. 357. 360 Morton ». Smith, 5 Bash, 467. 38 Moser r. Phoenix M. C. Ins. Co., 2 Mo. App. 408. 373 Hotteauxo. Gov. & Co. of Lon- don Ass., 1 Atk. (545) 631. 380 Monlor v. American L. Ins. Co., Ill U. S. 335. 179, 198, 203, 206, 214, 233 Mound City .M. L. Ins. Co. v. Twining, 12 Kan, 475; 19 Kan. 349. 352, 367, 373, 429, 457 Mowiy V. Home Life Ins. Co., 9 R. I. 346. 231, 350, 369 Mowry v. Indianapolis, etc., R. Co., 4 Biss. 78. 138 Mo-wry c. Rosendale, 74 N. Y. 360. 283, 428 Mowry o. World Mat. Ins. Co., 7 Daly, 321. 228 Moxey's Appeal, 9 W. N. C. 441. 91 Mueller v. Sonthside F. Ins. Co., 87 Pa. St. 399. 413, 436 Mollaney v. National, etc., Ins. Co., lis ilass. 3J3. 182 Mnlliner v. Guardian M. L. Ins. Co., 1 Thomp. & C. 448. 460 Mullins r. Thompson, 51 Tex. 7. 312 Mullin D. Vermont Mutual F. Ins. Co., 58 Yt. 113. 163 Ixiv TABLE OF CASES. [Tbe references are to. the sections.] Mulrey v. Sliawmut, etc., Ins. Co., 4 Allen, 116. 277, 426 Mnlroy v. Sup. L. Knights of Honor, 28 Mo. App. 463. 1, 73, 87, 85, 89, 103, 106, 107, 161, 237, 386, 414, 467 Munro V. Merchants, 26 Barb. 397. 470 Murdock's Case, 7 Pick. 303. 101, 1(^ Mnrdock v. Phillips Acad., 12 Pick. 244. 101 Murphy v. Red, 64 Miss. 614. 1 South. Eep. 761, 302 Murphy v. Southern L. Ins. Co. 3 Baxt. (Tenn.) 440, 432 Murray v. New York L. Ins. Co. 9.6 N. Y. 614. 339 Murray v. N. Y. L. Ins. Co., 85 N. Y. 236. 469 Mut. Accident, etc., Ass. v, Kayser, 14 W. N. C. 86. 446, 446 Mutual Aid Soc. v. White, 100 Pa. St. 12. 228 Mut. Aid Soc. V. Helbum, 2 S. . W. Rep. 495. 377 Mutual Endowment Ass. Assn. V. Essender, 59 Md. 463. 389 Mut. L. Ins. Co. V. Allen, 138 Mass. 24, 802, 303 Mut. L. Ins. Co. V. Terry, 15 ■Wal. 580; 7 Alb. L. J. 310; Mut. L. Ins. Co. V. Girard, etc., Co., 100 Pa. St. 172. 866, 361, 431 Mut. L. Ins. Co. V. Bratt, 55 Md. 200. 373 Mutual Life Ins. Co. v. Wager, 27 Barb. 354. 164, 437 Mut. Ben. L. Ins. Co. v. At- •wood, 24 Gratt. 497 066 Mut. Ben. L. lus. Co. v. Can- non, 48 Ind. 264. 454 Mut. Ben. L. Ins. Co. «. French, 30 Ohio St. 2 40. 369, 317 Mut. Ben. L. Ins. Co. v. Hig- ginbotham, 96 U. S. 380. 471 Mut. Ben. Ins. Co. v. Hillyard, 87 N. J. L. 444. 356 Mut. Ben. Assn. v. Hoyt, 46 Mich. 473. 169, 249, 266 Mut. L. Ins. Co. V, Xi&weence, 6 Bradw. 280. 336 Mut. Ben. L. Ins. Co. v. Miller, 39 Ind. 476. 211, Mut. L. Ins. Co. V. Newton, 23 Wall. 32. 471 Mutual, etc., Ins. Co. v. Rob- ertson, 69 111. 123. 198, 361 Muit. Ben. Ii. Ins. Co. «. Ruse, 8 Ga. 534. 363 Mut. L. Ins. Co. V. Sandfelder, 9 Mo. App. 286. 312 Mutual L. Ins. Co. v. Stibbe, 46 Md. 302. 328, 471 Mutual L. Ins. Co. v. Terry, 26 How. Pr. 325. 301 3 Big. L. & Ace. Ins. Cas. 819; 2 Ins. L. J. 540; 1 Dill. 403. 834 Mut. Ben. L. Ins. Co. e. Tis- dale, 91 tr. S. 241. 470 Mutual Benefit L. Ins. Co. v. Wise, 34 Md. 682. 219, 223, 234, 326, 463, 469 Mut. Prot. L. Ins. Co. «. Laury, 84 Pa. St. 43. 432 Myers v. Council Bluffs Ins. Co. (la ), 83 N. W. Rep. 468. 412, 436 Myers v. John Haacock Ins. Co., 41 Mo. 538. 263 Myers 0. Keystone, etc., Ins. Co., 27 Pa. St. 266; 67 Am. Dec. 462. 174 TABLE OF CASES. Ixv [The references are to the sections.] NaUy V. NaUy, 74 Ga. 669. 308 Nashville L. Ins. Co. v. Math- ews, 8 Lea, 499. 464 National Am. Assn. v. Kirgin, 28 Mo. App. 80. 255, 291, 308 National Bank v. Insurance Co., 95 U. S. 673. 179, 198, 203 National Banking, etc., v, Knaup, 55 Mo. 154. 174 National Ben. Assn. v. Bow- man, 110 Ind. 355. 161, 455 Nat. Ben. Assn. v. Grauman, 107 Ind. 288; 5 "West. Rep. 848; 7 N.East. Rep. 233. 469, 470 National Ben. Assn. v. Jackson, 114 m. 633. 369 National Ins. Co. v. Haley, 78 Me. 268. 292, 294 N. Am. Ins. Co. v. Craigen, 6 Enss. & G. (Nov. Sc.) 440. 302 N. Amer. Ins. Co. v. Whipple, 2 Biss. 419. 279, 281 National Mnt. Aid Assn. v. Gonser, 43 Ohio St. 1; 1 N. East. Bep. 11; 1 West. Eep. 4. 55, 168, 244, 264, 260, 311, 312 National Mnt. Aid Soc. v. Lu- poid, 101 Pa. St. 111. 307, 308, 430, 431 National Mut. Ben. Assn. v. Miller, 2 S. W. Eep. 900; 8 Ky. L. Eep. 731. 368, 382, 431 National L. Ins. Co. v. Minch, 53 N. Y. 144. 437 Nat. Trader's Bank «. Ocean Ins. Co., 62 Me. 519'. 279 Neall V. HiU, 16 Cal. 146. 124 N. E. Car Spring Co. v. Union India Rubber Co., 4 Blatchf . 1. 143 Neese v. Farmers' Ins. Co., 65 la. 604. 467 I NeiU V. Am. Popular L. Ins. Co., 10 Jones & Sp. 259. 471 NeiU V. Union Mut. L. Ins. Co., 45 Up. Can. Q. B. 593; 7 Ont. App. 171. 369, 371 Nelson 'v. Davis, 40 Ind. 366, 283 Neskem v. N. W. End. Assn., 30 Minn. 406. 463, 466 Nettleton v. St. Louis L. Ins. Co., 7 Biss. 293. 872 Nevins v. Eockmgham M. F. Ins. Co., 25 N. H. 22. 443 Newell V. Borden, 128 Mass. 81. 112 New England Ins. Co. v. De Wolf, 8 Pick. 56. 137 New England Mut. L. Ins. Co. V. Hasbrook, 32 Ind. 447. 372 New England F. & M. Ins. Co. v. Schettler, 38 111. 166. 160, 171, 192 N. Jersey M. L. Ins. Co. v. Baker, 94 U. S. 610. 468 Newman v. Jenkins, 10 Pick. 615. 470 Newmark v. Liverpool, etc., Ins. Co., 30 Mo. 160. 470 New Orleans v. Harris, 27 Miss. 687. 64 New Orleans Ins. Co. v. O'Brian, 8 Ky. L. Rep. 785. 471 Newson's Admrs. v. Douglass, 7 Harr. & J, 417. 263 Newton V. Ins. Co., 76 N. Y. 426; 32 Am. Rep. 335. 329, 334 N. Y. Cent. Ins. Co. v. Nat. Prot. Ins. Co., 14 N. Y. 85; 20 Barb. 468. 406 N. Y; Ice Co. V. N. W. Ins. Co., 23 N. Y. 357. 223 N. Y Mut. L. Ins. Co. ». Arm- strong, 117 U. S. 591. 302, 308, 822 N. Y. L. Ins. Co. V. Bonner, 11 Neb. 169. 452 N. Y. L. lus. Co. V. Clopton, 7 Bush, 179. 366, 3G9 ixvi TABLE OF CASES. [The Ippferences are to the sections.] New York L. Ins. Co. v. Davis, 9fi U. S. 425. 366 New York L. Ins. Co. v. Flack, 3 Md. 341 ; 56 Am. Dec. 742. 297, 298, 299 New YorkL. Ins. Co. v. Pletch- er, 117 U. S. 519. 155, 159, 222, 42.6, 428, 429, 457, 458 N. Y. li. Ins. Co. V. Graham, 2 Duv. 506. 469 New York h. Ins. Co. v. Hen- dren, 24 Gratt. 540. 325, 356 New York L. Ins. Co. v. Mc- Gowan, 18 Kan. 300. 369, 426 N. Y. Life Ins. Co. ». Parent, 3 Que. L. R, 163. 302 New York L. Ins. Co. v. Statham, 93 U. S. 24. 17, 164, 285, 351, 356, 357 N. Y. L. Ins. Co. «. Talbot, 3 Que. L. E. 168. 302 Niagara F. Ins. Co., v. Scam- mon, 100 111. 644. 179 Nichols V. Payette Ins. Co,, 1 Allen, 63. 204 Nickerson v. Nickerson (Me.), 5 N. Eng. Kep. 798; 12 Atl. Eepv 880. 410 Nor'ris v. Massachusetts M. L. Ins. Co., 131 Mass. 294. 294 Norris v. Staps, Hob. 211. 84 North Am. L. Ins. Co. v. Craigen, 6 Russ. & G. (Nova Scotia), 440. 249 Northampton, etc., Ins. Co. v. Tuttle, 40 N. J. L. 103; 39 N. J. L. 486. 272, 381 North British, etc., Ins. Co. V. Crutchfleld, 108 Ind. 518. 408 North British, etc., Co. v. Hall- ett, 7 Jur. (N. s.) 1263 ; 9 W. R. 830. 398 Northwestern Mut. L. Ins. Co, V. Amerman, 119 111. 329; 10 N. East. Rep. 225; 7 West. Rep. 712. 326, 431 Northwestern Ins. Co. v. At- kins, 3 Bush, 328. 406 Northwestern Benev., etc., Assn. V. Cain, 21 HI. Ct. App. 471. 216 Northwestern Mut. L. Ins. Co. V. Fort, 82 Ky. 269. 372 Northwestern Ins. Co. v. Ger- mania F. Ins. Co., 40 Wis. 446. 435 Northwestern B. & M. A. Assn. V. Hall, 118 111. 169. 462 Northwestern M. L. Ins. Co. v. Hazelett, 105 Ind. 212; 4 N. East. Rep. 582 ; 2 West. Rep. 690; 55 Am. Rep. 192. 179, 326, 329, 469 Northwestern Mut. L. Ins. Co. V. Heimann; 93 Ind. 24. 232, 234 Northwestern Mut. L. Ins. Co. V. Little, 56 Ind. 504. 371, 373 Northwestern Ins. Co. v. Mus- kegon Bank, 122 U. S. 502 ; 7 Sup. Ct. Rep. 1221. 231,326,462 N. W. Ins. Co. V. Phoenix Oil Co., 31 Pa. St. 449. 443 Northwestern Mut. L. Ins. Co. V. Ross, 63 Ga. 199. 373 Northwestern Mut. L. Ins. Co. c. Roth, 87 Pa. St. 409. 4S9 Norton v. Phoenix M. L. Ins. Co., 36 Conn. 503. 174 Northern Central R. Co. v. Bas- tian, 16 Md. 494. 125, 140 Northampton M. L. Ins. Co. v. Tuttle, 40 isr. J. L. 476. 176 Northwestern Iron Co. v. JEtna Ins. Co., 23 Wis. 160; 99 Am. Dec. 145. 172 TABLE OF CASES. Lwii [The references are to the sections.] Northwestern M. L. Ins. Co. v. Elliott, 7 Sawy. IT; 6 Fed. Eep. 225. 175 Norwood V. Guerdon, 60 111. 253. 301 Notman v. Anchor Ass. Co., i C. B. (n. 8.) 476. 324 Numey v. Firemen's Ins. Co. (Mich.),30N. W. Rep. 360. 450 Nute V. Hamilton, etc., Ins. Co., 6 Gray, 174. • 443 0. O'Brien v. Ohio Ins. Co., 52 Mich. 131. 409, 413 O'Brien- v. Union Mut. L. Ins. Co., 22 Fed. Rep. 586. 353, 426 O'Brien v. Home Ben. Soc, 46 Hun, 426. 453 O'Connor v. Hartford Ins. Co., 31 Wis. 160. 406 O'Connor v. Com., etc., Ins. Co., 3 Euss. & C. (Nova Scotia) 119. 436 O'Laughlin v. Union Cent. L. Ins. Co., 3 McC. 543; 11 Fed. Rep. 280. 443, 445, 447 O'Neil V. Buffalo F. Ins. Co., 3 N. Y. 123. 201 O'Reilly v. Guardian Mut. L. Jns. Co., 1 Hun, 460. 362 O'Reilly v. Guardian Mut. L. Ins. Co., 60 N. Y. 169. 403, 407 Oakley v. Workingmen's Ben. Soc, 2 Hilt. 487. 140 Gates V. Sup. Court of Forest- ers, 4 Ont. Kep. 535. 385 Odd-fellows' Mut. L. Ins. Co. V. Rohkopp, 94 Pa. St. 59. 326 Oglesby Coal Co. v. Pasco, 79 111. 164. 257 Ohde V. Northwestern Mut. L. Ins. Co., 40 la. 357. 373 Ohio & Miss. R. Co. v. McPher- son, 35 Mo. 13. 138 Oke V. Heath, 1 Ves. sr. 139. 243, 306 Olcott V. Tioga R. Co., 40 Barb. 179. 125, 140 Old SaucelitOj etc., Co. v. Com. Union Ass. Co., 66 Cal. 253. 450 Olery v. Brown, 51 How. Pr. 92. 105, 106, 10 7, 442 Oliver v. Am. Leg. of Honor, 17Am.L. Rev. 301. 270, 273 Oliver v. Hopkins, 144 Mass. 175; 4 N. Eng. Rep. 796; 10 N. East. Rep. 776. 75 Oliver V. Ins. Co., 2 Curt. C. C. 277. 278, 279 Olmstead v. Keys et al., S5 N. Y. 593. 294, 302, 397 Olmstead ». Masonic Ben. Soc, 14 Pac. Rep. 449; 37 Kan. 93. 292, 296, 307 Olmstead b. Farmers' Mut. F. Ins. Co., 50 Mich. 200. 385, 431 Order Mut. Companions v. Griest (Cal.), 18 Pac. Rep. 652. 242, 243 Organ v. Hibernia F. Ins. Co., 3 Mo. App. 576. 411 Ormond v. Mutual L. Assn., 96 N. C. 158; 1 S. E. Rep. 796. 174, 353 Osceola Tribe v. Schmidt, 57 Md. 98. 74, 81, 91, 94, 106, 414 Oswald V. Earl Grey, 24 L. J. Q. B. 69. 102 Otterbein v. la. State Ins. Co., 57 la. 274. 270 Otto V. Journeyman Tailors, etc., Union (Cal.), 17 Pac. Rep. 217. 88, 96, 101, 102, 105, 106, 107, 109 Ouldr. Washington Foundling Hosp., 95 U. S. 303. 38 Ixviii TABLE OF CASES. [The references are to the sections.] Overton v. St. Lonis Mut. h. Ins. Co., 39 Mo. 122. 339 Owen V. Howard Ins. Co., 9 Ky. L. Bep. 147. 446 Pace V. Pace, 19Fla. 438. 263, 464 Packard v. Conn. Mut. L. Ins. Co., 9 Mo. App. 469. 292, 373, 423 Paine D.Prentiss; 5 Met. 396. 260a Palmer v. Hartford F. Ins. Co., 54 Conn. 488; 4 N.Eng. Kep. 470; 9 Atl. Bep. 248. 279, 429 Palmer v. MerrUl, 6 Cush. 282; 52 Am. Dec. 782. 297, 302 Palmer v. Phoenix M. L.'Ins. Co., 84 N. Y. 63. 358, 432 Palmer «. St. Paul, etc., Ins. Co., 44 Wis. 201. 405 Palmer v. WaiTen Ins. Co., 1 Story, 364. 179 Parker v. Butcher, L. B. 3 Eq. Cas. 762. 142 Park V. Spauldlng, 10 Hun, 128. 32, 36, 113 Parmelee v. Hoffman K. Ins. Co., 54 N. Y. 193. 471 Parsons v. Queen Ins. Co., 43 Up. Can. Q. B. 271 ; 4 Ont. App. 103. 406 Partridge v. Com. P. Ins. Co., 17 Hun, 95. 408 Passenger Conductors, etc., Ins. Co. V. Bimbaum (Pa.), 10 Cent. Bep. 631; H Atl. Bep. 378. 377 Patch V. Phoenix M. L. Ins. Co., 44 Vt. 481. 372 Patrick V. Excelsior L. Ins. Co., 67 Barb. 202; 4 Hun, 263. 337 Patrick v. Earmers' Ins. Co., 43 N. H. 621. 405, 448 Patterson v. Powell, 9 Bing. 820. 16 Patton c. Employer's, etc., Assn. Co., 20 L. B. (Ir.) 93. 403 Paul V. Keystone Lodge, 3 W. N. C. 408. 453 Pawson V. Watson, 1 Cowp. 785. 183, 194 Paxson V. Sweet, 1 Green, 196. 86 Payne v. Snow, 12 Cush. 443; 59 Am. Dec. 203. 35, 114 Payne v. Mut. Belief Soc, 17 Abb. N. C. 53; 6 N. Y. S. Bep. 365. 379, 380, 406, 409, 43« Peacock v. New York L. Ins. Co., 20 N. Y. 296; 1 Bosw. 338. 232, 234 Pearce v. Piper, 17 Ves. 1. 29, 35, 36, 67, 441 Pearson v. Tower, 56 N. H. 215. 143 Peck V. New London, etc., Ins. Co., 22 Conn. 575. 142, 160, 278 Pellazzino e. Germ. Cath. Soc, etc., 16 Cin. L. Bui 27. 80, 92, 187 Pelly V. Boyal Exchange Ins. Co., 1 Bur. 349. 179 Pence v. Makepeace, 65 Ind. 3*5- 301, 312 Penfleld v. Skinner, 11 Vt. 296. 39, 57, 76, 143 Penfold V. Universal L. Ins. Co., 86 N. Y. 317; 39 Am. Bep. 660. 329, 334, 336 Benin v. Carey, 24 How. 465. 38 Pennell v. Lamar Ins. Co., 73 111. 303. 448 Pennsylvania E. Co. v. Canal Commissioners, 21 Pa. St. 9. 42 Penn. E. Ins. Co. v. Dougherty, 102 Pa. St. 568. 413, 436 Penn Mut. Ins. Co. v. Watson, 3 W. N. C. 613. 296 TABLE OF CASES. bdx [The references are to the sections.] Fenn Mnt. I<. Ins. Co. v. Crane, 134 Mass. 56. 466 Fenn Mut. L. Ins. Co. v. WUer, 100 Ind. 92. 204, 464, 465, 460, 461 Feople V. American Institute, 44 How. Ft. 468. 100, 101 Feople o. Board ol Trade, 80 m. 134. 103 Feople V. Board of Trade, 45 m. 112. .. 103 People V. Empire Mnt. Ins. Co., 92 N. Y. 105. 369 Feople V. Erie Medical Society, 32 N. T. 187. 63, 85, 86, 97, 101, 103, 110 Feople V. German, etc., Ch., 53 N. T. 103. 442 Feople V. Globe Mut. L. Ins. Co., 65 How. Pr. 239. 366 Feople ». Knickerbocker L. Ins. Co., 103 N. Y. 480; 9 N. East. Rep. 36; 4 Cent. Kep. 783. 272, 373 Feople V. Fire Dept., etc., 31 Mich. 458. 100, 101, 107, 110 Feople V. Mechanics' Aid Soc, 22 Mich. 86. 100 Feople V. Med. Soc. of Erie, 24 Barb. 577. 63, 85, 97, 103 Feople V. Musical Mut. Protec- tive Union, 47 Hun, 273. 101 People V. Musical, etc.. Union, 1 N. Y. S. B. 770. 101 People V. N. Y. Ben. Assn., 3 Hun, 361. 84, 109, 442 Feople, etc., v. Phelps, 78 HI. 147. 362 People V. SaUors' Snug Harbor, 6 Abb. Pr. (n. s.) 119. 86 Feople V. Security L., etc., Co., 78 N. Y. 114; 34 Am. Kep. 622. 359, 477, 478 I People V. St. Franciscus, etc., 24 How. Pr. 216. 101, 109 People exrel. Stewarts. Father Matthew, etc., Soc, 41 Mich. 67. 42, 46, 83, 85, 86 People V. St. George Soc, 28 Mich. 261. 81, 103, 442 People V. Widows, etc., Ins. Co., 16 Hun, 8. 373 Peoria, etc., Ins. Co. o. Hall, 12 Mich. 202. 445 Peoria, etc, Ins. Co. v. Lewis, 18 111. 65S. , 412 Peoria, etc., Ins. Co. v. White- hill, 25 111. 466. 177, 443 Perrins b. Marine & Gen. Tr. Ins. Co., 2 El. & El. 317; 29 L. J. Q. B. 242; 6 Jur. (n. s.) 627 ; 8 W. E. 563. 227, 228 Perry v. Ins. Co., 25 Ala. 360. 299 Phadenhauer v. Germania L. Ins. Co., 7 Heisk. 567; 19 Am. Kep. 623. 334 Fhelan v. Northwestern Mut. L. Ins. Co., 42 Hun, 419. 360 FhUlips V. Campbell, 43 N. Y. 271. 127 Phillips V. Grand Kiver, etc., Ins. Co., 46 Up. Can. Q. B. 334. 436 Phillips' Insurance, In re, 23 Ch. D. 281'; 52 L. J. Ch. 441; 48 L. T. 81; 31 W. K. 611. C.A. ' 311 Phillips V. La. Ann. Ins. Co., 26 La. Ann. 404 ; 21 Am. Kep. 549. 334 Phillips V. Wickham, 1 Paige, 590. 85 Phoenix Ins. Co. v. Adams, 8 Ky. L. Rep. 632. 413, 436 Phoenix Ins. Co. v. Badger, 53 Wis. 283. 450 Ixx TABLE OF CASES. [The references are to the sections.] Fhcenix Ins. Co. v. Doster, 106 tJ. S. 30. 360, 432, 433 Phoenix F. Ins. Co. v. Gnmee, 1 Paige Ch. 278 278, 279 Phoenix Ins. Co. v- Lansing, 15 Neb. 494. 431 Phoenix Ins. Co. v. La Pointe, 118 m. 384. 459 Phoenix Ins. Co. v. Lebcher, 20 Bradw. 450. 445 Phoenix Ins. Co. v. Moog, 78 Ala. 284. • 454 Phoenix Ins. Co. v. Stevenson, 78 Ky. 150; 8 Ins. L. J. 922. 435 Phoenix Ins. Co. v. Tucker, 92 m. 64. 411, 412, 436 Phoenix Ins. Co. o. Underwood, 12 Heisk. 424. 445 Phoenix Mnt L. Ins. Co. o. Baker, 85 lU. 410. 373 Phoenix Mnt. L. Ins. Co. v. Dunham, 46 Conn. 79. 301 Phoenix Mnt. L. Ins. Co. v. Hlnesley, 75 Ind. 1. 360, 361, 426 Phoenix Mut. L. Ins. Co. v. Baddin, 120 U. 8. 183, 189; 7 Sup. Ct. Eep. 500. 204, 206, 212, 214, 427 Pickering v. Stephenson, L. R. 14 £q. Cas. 323. 134 Piedmont, etc., Ins. Co. v. Ew- ing, 92 U. S. 377. 272, 274, 353, 469 Piedmont & Arlington Ins. Co. V. Fitzgerald, W. & W. (Tex.) 784. 433 Piedmont & Arlington L. Ins. Co. p. Lester, 59 Ga. 812. 367 Piedmont & Arlington L. Ins. Co. V. McLean, 31 Gratt. 517. 367, 426 Piedmont & Arlington L. Ins. Co. V. Wallin, 58 Miss. 1. 47S Piedmont & A. L. Ins. Co. «. Toung, 58 Ala. 476. 153, 179, 192, 203, 426, 429 Pierce v. Cliarter Oak L. Ins. Co., 138 Mass. 151. 182, 454, 464 Pierce v. Fire Ins. Co., 50 N. H. 297. 297 Pierce v. Travelers' Life Ins. Co., 34 Wis. 389; 5 Big. L. & A. Ins. Cas. 498. 329, 336 Pigg V. Clark, 3 Ch. D. 674. 256 Piggott T. Thompson, 3 Bos. & Pnl. 146. 143 PUcher v. N. Y. L. Ins. Co., 33 La. Ann. 322. 292, 429 Plngrey o. National L. Ins. Co., 144 Mass. 381; 11 N. East. Bep. 562; 4 S. Eng. Bep. 229. 292 Pipe V. Bateman, 1 la. 369. 35 Pitcher v. Hennessey, 48 N. Y. 415. 278 Pitt V. Berkshire Ii. Ins. Co., 100 Mass. 500. 369, 374 Pittsburgh Ins. Co. v. Frazee, 107 Pa. St. 521. 471 Planters' Ins. Co. v. Comfort, 50 Miss. 662. 378, 413, 436 Planters' Ins; Co. v. Engle, 52 Md. 468. 412, 436 Planters' Ins. Co. v. Myers, 55 Miss. 479; 30 Am. Bep. 521. 153, 221, 426, 428, 458 Planters', etc., Ins. Co. v. Rowland, 66 Md. 240. 183 Planters' Ins. Co. v. Sonela, 1 Baxt. 352. 458 Plews V. Middleton, 6 A. & E. (». 8 ) 845; 14 L. J. Q. B. 139; 9 Jur. 160. 102 Plumb V. Cattaragns Ins. Co., 18 N. Y. 392; 72 Am. Dec. 526. 221, 1S8 TABLE OF CASES. Ixxi [The references are to the sections.] Pohalaski e. Mat. L. Ins. Co., 56 N. Y. 640; 45 How. Pr. 604. 324 Fomeroy «. Manhattan L. Ins. Co., 40111. 400. 175,301 Ponieroy v. Rocky Moantain, etc., Ins. Co., 9 Colo. 295. 426, 431 Portage Ins. Co. v. West, 6 Ohio St. 602. 443 Porter's Will, In re, 6 W. R. 187. 260 Potter V. Ontario Ins. C6., 5 HiU, 149. 179 Potter V. Search, 7 Phila. 443. 124 PooHaiey c Bachmann, 62 How. Pr. 466; 31 Hnn, 49. 74, 80, 86, 92, 107, 187 Powers V. N. E. Mnt. L. Assn., 50 Vt. 630. 210, 233 Powles V. Innes, 11 Mee. & W. 10. 297 Prentice c. Kni(*erbocker L. Ins. Co., 77 N. Y. 483. 413 Presbt. Ass. Fond v. Allen, 106 Ind. 593; 7 N. Kast. Viep. 317; 4 West. R^. 712. 83, 161, 168, 216, 237, 889, 244, 254, 295, 304, 323 Preston v. Ne^e, 12 Ch. Div. T60; 40 L. T. 303; 27W. R. 648. 397 Preston V. Travelers' Ins. Co., 68 N. H. 76. 465 Price ». Knights of Honor (Tex.), 68 Tex. 861; 4 S. W. Rep. 633. 303 Price «. Pfaomix. Mnt. Ii. bis. Co., 17 Minn. 497; 10 Am. Rep. 166. 198, 199, 203, 206, 214, 230a, 234, 469 Price V. Strange, 6 Madd. 169. 262 Priest V, Citizens' Ins. Co., 3 AUen, 602. 140, 167, 426 Prince of Wales, etc., Co. v. Harding, 1 E. B. & E. 183. 171 Pritchard v. Merchants', etc., Soc, 3 C. B. (N. s.) 622. 370 Pritchett v. Shafer, 2 W. N. C. 317. 114 Protchett «. Shaefer et al., 11 Phila. 166. 29, 35, 37, 88, 91 Protection Ins. Co. «. Harmer, 2 Ohio St. 473. 205 Protection L. Ins Co., In re., 9 Biss. 188. 377 Protection Life Ins. Co. v. Foote, 79 111. 361. 122, 377, 383. 433 Protection L. Ins. Co. v. Palmer, 81 HI. 88. 382 Provident L. Ins. Co. v. Baom, 29 Ind. 236. 253, 302, 405 Provident L. Ins. Co. v. Pen- neU, 46 HI. 180. 228 Prowittt). Rodman, 37 N. Y. 42. 267 Frndential Ass. Soc. v. Mtjta, L. Ins. Co., 52 Conn. 579; 23BIatchf. 223; 23 Fed Rep. 438. 208, 323 Fradential Assurance Co. v.Ed- monds, L. R. 2 App. Cas.487. 470 Pnlford V. Fiie Department, «tc., 31 Mich. 458. 85, 86, 88, 101, 103, 106 PoUis V. Robinson, 73 Mo. 202. 6 Mo. App. 548. 299, 312 Q. Qnarrier v. Peabody Ins. Co., 10 W. Va. 507. 454 Qoeen'8 Ins. Co. v. Legare, Ramsay's App. Cas. (Low Can.) 369. 467 Queen v. Saddler's Co., 10 H. of L. Cas. 404. 86, 86, 88, 102 Qninnv. Manhattan L. Ins. Co., 28 La. Ann. 136 359 Ixxii TABLE OF CASES. [The referenceB are to the secUpiis.] B. BadcUfle »; Buckley, 10 Ves. 195. 257 Badshall v. Foid, L. B. 2 £q. Cas. 750. 283 Railway Co. e. AJlerton, 18 WaU. 233 134 Bailroad Co. v. Gary, 26 N. T. 76. 41 Bailway Passengers' Ass. Co. V. BnrweU, 44 Ind. 460. 405 Kanney v. Wat. Ben. I>. Ins. Co., May on Ins. 302 328 Banb «, Masonic Mnt. Bel. Assn., 3 Mackey, 68. 83, 306, 308 Bawlins v. Deshorongh, 2 M. & Kob. 328. 213 Bawls V. Am. I.. Ins. Co., 27 N. Y. 282; 36 Barb 357. 250, 302, 397, 460, 462 Bay V. Powell, 134 Mass. 22. 38, 112 Baynsford v. Boyal Ins. Co., 53 N. Y. 626 ; IJ. & S. 453 324 Beal Estate M. F. Ins. Co. v. Boessle, 1 Gray, 336. 268 Bedman v. Mtaa, Ins. Co., 49 Wis. 431. 454,469 Beed v. Independent Ins. Co., I Ins. li. J. 736. 474 Beed V. McLanghUn, 2 Han. (JS. B.) 128. 436 Beed v. Washington Ins. Co., 138 Mass. 576. 450 Beeves e Biymer, 4 Tea. 692- 698. 257 Beeve v. Parkins, 2 Jac. & Walk. 390. 29, 36, 67 Beg. «. Evans, 3 EL & Bl. 363; 23 L. J. M. C. 100. 94 Beichard v. Manhattan L. Ins. Co., 31 Mo., 518. 231, 443 Beid e. Piedmont & Arlington L. Ins. Co., 68 Mo. 421. 230a, 462 BeU V. Bundle, 103 U. S. 222. 475 Belt V. Union L. Ins. Co., 17 Ins. Chron. 3; 18 C. It. J. 347. 260 Belief Assn o. McAnley, 2 Mackey, 70. 236, 306 Belief P. Ins. Co. e. Shaw, 94 U. ' S. 574. 172 Benk v. Herrman Lodge, 2 Demar. 409. 307 Beserve Mat. L. Ins. Co. r. Kane, 81 Fa. St. 154; 22 Am. Bep. 741. 260 Bezo. Gaskln, 8 Dumf, & B. 209. 442 Bex V. Major of Abington, 2 Salk. 432. 442 Bex V. Mayor of Coventry, 2 Salk. 430. 442 Bex V. Bichardson, 1 Burr. 519. 103 Bex V. Town of Liverpool, 2 Burr. 732. 97, 103, 442 Beynolds v Continental Ins. Co., 36 Mich. 131. 467 Bhode V. Bank, 52 la. 376. 312 Bhodes 1,. Bailway Pass. Ins. Co., 6 Lans. 77. 396a Bice V. New England M. A. Soc. (Mass.), 6 N. Eng. Bep. 813; 15 IT. East. Bep. 624. 244, 261, 265, 396, 399, 431 Bice V. Peninsula Club, 62 Mich. 87. 127 Bich V. Bich, 16 Wend. 666. 463 Bichardson v. Firemen's Ins. Co., 15 Jones v. Sp. 159. 464 mchardfion-Gardner v. Free- mantle, 24 L. T. (N. 8.) 81; 19 W. K. 266. 106, 442 Bichardson 8. Hastings, 7 Beav. 323. 29 Bichardson v. Home Ins. Co., 15 Jones & Sp. 128. 464 Bichardson v. Maine Ins. Co., 46 Me. 394. 223 TABLE OF CASES. Izxiii [The references are to the secfions.] Bichardson •. North Missouri Ins. Co., 57 Ho. 413. 454 Kchmond v. Johnson, 88 Minn. 447. 161, 886, 837, 894, 306, 318 Kchmond «. Jnd7, 6 Ho. App. 466. 35, 38, 118, 180, 185 Sicker «. Charter Oak Ins. Co., 87 Minn. 193; 38 Am. Sep. 889. 893 Sicketts «. Bennett, 4 Hy. O. &S. 6^0: 56B. C. I.. . 31 Biddlesbarger «. Hartford bis. Co., 7 Wall. 386. 443 KddeU V. Harmony F. Ins. Co., 8 Phila. SIO. 443 Sider e. PoweU, 88 N. Y. 310. 879 Sidney e. Sobson, 3 Watts & S. 118. 38, 118, 188 Sigby V. Connol, 14 I,. S. Ch. D. 488; 28 W. B- 650. 94, 105, 108, 443 SUey «. Hartford L. & A. Ins. Co., 35 Fed. Sep. 315. 336 Sinasharger r. Union Mnt. A. Assn., 73 la. 191 ; 33 X. W. Sep. (^26. 463 Bindge >. N. £ng. H. Aid Soc (Mass.), 15 >. East. Sep. 62r8. 396, 399 Sing p. Windsor, etc., Ins. Co., 51 Vt 663. 458 Sipley «. .Stna Ins. Co., 30 N. r. 136 , 89 Barb. 553. 194, 199, 443 Bipley v. Astor Ins. Co., 17 How. Pr. 444. 446 Bison V. WUkerson, 3 Sneed, 565. 305 Blrara t. Queen's Ins. Co., ii Miss. 720. 426, 429, 458 | Bivard v. Gisenhof, 35 Hun, 247. 260 ' I Siyers •. Gregg, 6 Bich. Bq. I 874. 250 I Six •. Mntnal Ins. Co., 80 N. H. 198. 405 Boach «. Ky. Mnt. Sec F. Co. (S. C), 6 S.B.Bep.886. 463, 469 Soach V. N. T. & £rie Ins. Co., 30 H. Y. 546. 443 Bobbins v. Waldo Lodge, 78 Me. 565; 7 Atl. Sep. 640; 3 N. Eng. Sep. 398. 76, 441 Bobert v. New England, etc, Ins. Co., 1 Disney, 355. 370 Boberts «. Boberts, 64 N. C. 695. 893, 296 Bobertson v. Bullions, 9 Barb. 134. 103 Bobertson v. French, 4 East, 135. 177, 181, 194 Bobertson «. Metropolitan Ii. Ins. Co., 88 N. Y. 641. 483, 431 Bobinson «. BuTall, 79 Kj. 83. 264,896 Bobinson «. Haidcastle, 8 Br. Ch. C. 344. 267 Bobinson v. International !>. Ass. Soc, 42 N. Y. 64; 52 Barb. 450. 366 Bobinson r. Mat. !•. Ins. Co., 16 Blatchf . 194. 301 Bobinson r. Bobinson, 10 Me. 840. 38 Bobinson r. Yates CSty Lodge, Si! 111. 598. 67, 102 SockweU V. Mnt. L. Ins. Co., 27 Wis. 372; 20 Wis. 335. 431 Koehler r. Mech. Aid Soc, 22 Mich S9. 85. ^. 99, 101, 108, 103, 442 Boehner r. Knickerbocker !•. Ins. Co., 63 N. Y. 160; 4 Daly, 512. 371, 372 Sogers «. Capitol L. Ins. Co., 1 W. X. C. .V^<>. 370 Sogers ». The Charter Oak L. Ins. Co., 4i Conn. 97. 2T6 Ixxiv TABLE OF CASES. [The references are to the sectionB.] Boger Williams, etc., Ins. Co. V. Carrington, 43 Mich. 252. 299 Rohrback v. .Sltna Ins. Co., 62 N. Y. 613. 426, 468 Bokes V. Amazon Ins. Co., 51 Md. 512. 409, 436 ' Bomhachv. Piedmont, etc., Ins. Co., 35 La. Ann. 233. 250 Rood V. Bailway, etc., Mnt. Ben. Assn., 31 IFed. R^. 62. 123, 148, 385, 400, 450 Bootes, In re, 1 Drew. & Sm. 228. 260 Roper V. Bnike, 83 Ala. 193; 3 6. Bep. 439. 441 Ropor V. London, 1 VA.. v. El. 825; 28 L. J. Q. B. 260; 5 Jar. " (N. 8.) 491 ; 7 W. B. 441. 450 Bosenberger v. Washington Mut. F. Ins. Co., 87 Pa. St. 207. 377 Bossu. Bradshaw, 1 W. Bl. 313. 232 Boswell w. Equitable Aid Union, 13 Fed. Bep. 840. 378, 431. 433 Boumage v. Mechanic's Ins. Co., 1311. J. L. 110. 405 Eowe V. Williams, 97 Mass. 163. 450 Bowley v. Empire Ins. Co., 36 N. Y. 550; 3 Keyes, 557; 4 Abb. Gt. App. Dec. 131. 153, 160, 192, 221, 278, 428, 468 Boyal Templars of Temperance V. Curd, 111 lU. 286. 161, 177, 414 Boyad Ins. Co. v. Smith, 8 Ky. Law E. 521. 454 Boyle V. Hamilton, 4 Ves. 437. 257 Bundle v. L. Association, 10 Eed. Bep. 720; 4 Woods, 94. 475 Buse V. Mut. Ben. Ins. Co., 23 N. Y.516;24N. Y. 653; s. c. 8 Ga. 534; 26 Barb. 556. 302, 362, 363, 396, 454, 466 RusseU V. AUen, 107 V. S. 163. 38 Bussell V. Canada L. Ass. Co., 52 Up. Can. C. P. 256; 8 Ont. App. 716. 427 BusseU V. RnsseU, 64 Ala. 600. 257, 464 Bussell, In re, 15 L. E.Eq. 26; 27 L. T. 706; 21 W. R. 97. 398 Russnm v. St. L. Mut. L. Ins. Co., 1 Mo. App. 228. 372, 373 Ruth V. Eattermann, 112 Fa. St. 251; 2 Cent. Bep. 776; 3 Atl. Bep. 833. 249, 250, 302, 397 Byanc. World Mut. L. Co., 41 Conn. 168 ; 19 Am. Bep. 490. 154, 159, 222 Ryan v. Springfield, etc., Ins. Co., 46 Wis. 671. 423, 426, 428, 435, 4S8, 464 Sabin v. Grand Lodge, 6 N. Y. St. 151. 311 Sale ». First Beg. Baptist Ch., 62 la. 26; 49 Am. Bep. 136. 442 Salem Bank v. Gloucester Bank, 17 Mass. 29; 9 Am. Dec. 111. 147 Sallee v. Waters, 17 Ala. 488. 256 Salvin v. James, 6 East, 571. 363 Sanborn v. Ins. Co., 16 Gray, 448; 77 Am. Dec. 419. 171 Sands v. N. Y. L. Ins. Co., 60 N. Y. 626; 59 Barb. 556. 356, 369 Sanderson v. New England L. Ins. Co., 1 Disn. 355. 372 Sanford v. Trust, etc., Ins. Co., 11 Paige Ch. 647. 173 Sargent v. Webster, 13 Mete. *97. 66, 138 Sannders c. Bobinson, 144 Mass. 306; 10 N. E. Rep. 815; 4 N. Eng. Bep. 171. 74 Sayage v. Medbury, 19 N. Y. 32. 477 TABLE OF CASES. Ixxv [The references are to the sections.] Savannah CSotton Exchange o. State, 51 6a. 668. 89 Savannah Cotton Exchange v. State, 64 Ga. 668. 103 Saveland ». Fidelity & Casuality Co. (Iowa), 30 N. W. Rep. 237. 395a Savings Bank v. Benton, 2 Mete. (Ky.) 3tO. 140 Scammou v. Germania Ins. Co., 101 m. 621. . 405 SchefEer v. National L. Ins. Co., 25 Minn. 534. 334 Scheiderer v. Travelers' Ins. Co., 58 Wis. 13. 408, 454 Schenck v. Mercer Co., etc., Ins. Co., 24 N. J. L. (4 Zab.) 447. 405 Scheu V. Grand Lodge, etc., 17 Fed. Rep. 214. 74, 148, 385 Schillinger «. Boes, 9 Ey. L. Rep. 18; 3 S. W. Rep. 427. 86, 306 Schimpf V. Lehigh Valley, etc., Ins. Co., 86 Pa. St. 373. 377 Schmidt v. A. Lincoln Lodge (Ey.), 2 S. W. Rep. 156. 85, 105, 123 Schmidt v. Grand Girove, 8 Mo. App. 801. 312 Schmidt c. Peoria M. & F. Ins. Co., 41 HI. 295. 464 Schnook v. Ind. Order, etc., 21 Jones & 8p. 181. 259 Schobacher v. Germantown, etc., Ins. Co., 58 Wis. 86. 454 Schroeder v. Merchants', etc., Ins. Co., 104 111. 71. 443 Schnltz V. Hawkeye Ins. Co., 42 la. 239. 182 Schnltz V. Mat. L. Ins. Co., 6 Fed Rep. 672. 208, 231, 323, 326 Schnltz V. Insurance Co., 40 Ohio St. 217. 334, 336 Schnnck v. Gegenzeiten, etc., 44 Wis. 369. 86, 148, 161 Schwabe o. Clift, 2 Car. & Eir. 134; 3 Man. G. & S. 436; 17 L. J. C. P. 2. 332 Schwartz v. Germania Ins. Co., 18 Minn. 449. 272 Schwartz v. Germania L. Ins. Co., 21 Minn. 215. 275 Schwarzbach v. Ohio Valley P. Union, 25 W. Va. 622. 233, 427, 460, 462 Schweiger v. Society, 13 Phila. 113. 102, 103, 109 Scobey v. Waters, 10 Lea, 551. 301 Scoles V. Universal L. Ins. Co., 42 Cal. 523. 230a Scott V. Avery, 5 H. of L. Cas. 811; 25 L. J. Ex. 303; 2 Jur. (N. S.) 815; afErm.8Ex. 487; 22 L. J. Ex. 287; 17 Jur. 810. 87, 450 Scott V. Dickson, 108 Pa. St. 6. 163, 250, 297, 397 Scott V. Guernsey, 48 N. Y. 106. 257 Scott V. Home Ins. Co., 63 Wis. 238. 459 Scott V. Provident Mnt. R. Assn., 63 N. H. 556; 2 N. Eng. Rep. 286 ; 4 Atl. Rep. 792 240, 284 Scurry v. Cotton States L. Ins. Co., 51 Ga. 624. 465 Seamans v. N. W. Mut. L. Ins. Co., 1 McC. 508 ; 3 Fed. Rep. 458. 367 Seaton v. Marshall, 6 Bush, 429. 261 Second Ave. R. R. Co. d. Cole- man, 24 Barb. 300 143 Security L., etc., Ins. Co. v. Gober, 60 Ga. 404. 354 Security liiB. Co. v. Fay, 22 Mich. 467. 424 Ixxvi TABLE OF CA8B8. [The references are to the sections.] Seitzinger ». New Era L. Assn, 111 Pa. St. 557. *53 Selvage v. John Hancock, etc., Ins. Co., 12 Fed. Rep. 603. 362 Semm v. Supreme Lodge, etc. 29 Fed. Rep. 895. 216 Setnmes v. Insurance Co., 13 Wall. 58; s. c. 36 Conn. 543. 446 Sensenderfer v. Pacific M. L. Ins. Co., 19 Fed. Rep. 68. 470 Sentell?;. Oswego, etc., Ins. Co., 16 Hun, 616. 426 Servoss v. Western M. Aid Soc, 67 la. 86. 482 Settle V. HiU, 5 Ky. L. Rep. 691. 302 Sexton V. Montgomery, etc., Ins. Co., OBari). 191. 160, 405, 406 Shader v. Railway Passengers Assn. Co., 3 Hun, 424; 5 N. T. S. C. 643. 328 Shamrock Ben. Soc. v. Drum, 1 Mo. App. 320. 259 Shannon v. Frost, 3 B. Mon. 253. 77, 103, 110 Shannons. Hastings M. F. Ins. Co., 26Tr. Can. C. P. 380; 2 Ont. App. 81. 403 Sharpe v. Bickerdyke, 3 Dow's. Rep. 102. 102 Shattuck «. Mut. L. Ins. Co., 4 CliS. 598. 272 Shaw V. Berkshire L. Ins. Co., 103 Mass. 254. 364 Shaw V. Republic L. Ins. Co., 69 N. T. 286. 359, 364, 371, 464 Shear v. Mut. L. Ins. Co., 4 Hun, 800. 364 Shearman v. British Empire, etc., Ins. Co., 14 L. R. Eq. 4; 41 L. J. Ch. 466; 26 L. T. R. 570; 20 W. R. 620. 398 Sheerer «. Manhattan L. Ins. Co., 20 Fed. Rep. 886; 16 Fed. Rep. 720. 373 Sheldon v. Atlantic F. & M. Ins. Co., 26 N. Y. 460. 277 Sheldon v. Conn. Mut. L. Ins. Co., 25 Conn. 207; 66 Am. Dec. 566. 171, 172, 273, 366 Sheldon v. Hartford F. Ins. Co., 22 Conn. 235; 68 Am. Dec. 420. 164, 181, 468 Sheppard v. Peabody Ins. Co., 21 W. Va. 368. 418 Sherwood v. Am. Bible Soc, 4 Abb. App. Dec. 227. 38 Shotts V. Poe, 47 Md. 513. 255 ShurtlefE v. Stevens, 61 Vt. 601. 441 Sias V. Roger Williams Ins. Co., 8 Fed. Rep. 183. 278, 464 Sibbald v. Hill, 2 Dow's Pari. B. 263. 213 Sibley V. Carteret Club, 40 N. J. L. 295 (see also State ex rel., etc., v. Cartaret Club). 109 Sides V. Knickerbocker Ins. Co., 16 Fed. Rep. 650. 260, 397 Siebert v. Sup. Council Chosen Friends, 23 Mo. App. 268. 379, 380, 381, 469 Siegrist Admr. v. Schmoltz, 113 Pa. St. 326; 6 Atl. Rep. 47; 6 Cent. Rep. 230. 260, 303 Silverburg v. Phcenix Ins. Co., 67 Cal. 36. 486 Simeral o. Dubuque Mut. F. Ins. Co., 18 la. 319. 81, 161 Simmons v. Ins. Co., 8 W Va. 474. 221, 464 Simpson v. Accidental Death Ins. Co., 2 C. B. (n. 8.) 257. 370 Simpson t). Windham, etc., Ins. Co., 57 N. H. 160. 436 Sims «. State Ins. Co., 47 Mo. 64. 406 Singer ». Charter Oak Ins. Co., 22 Fed. Rep. 774. 299 TABLE OF CASES. Ixxvii [The references are to the sections.] Singleton v. St. Louis Ins. Co., 66 Mo. 63; 27 Am. Rep. 321. 284, 250, 460, 465, 469 Sinking Springs Mnt. Ins. Co. «. HofE, 3 W. N. C. 41. 379 Sizero. Daniels etal., 66 Barb. 426. 38, 112, 120 Skelly V. Private Coachmen's Ben Soc., IS Daly, 2. 91 Skillings v. Mass. Ben. Assn. (Mass.), 15 K. £ast. B«p. S66; 6 N. Bng. Rep. 718. S44, 261, 312, 399 SknUy V. Eirkpatric^, 79 Pa. St. (29 P. F. Smith) 324. 855 Slater Mnt. F. Ins. Co. v. Bar- stow, 8 R. I. 343. 377 Slee c. Bloom, 19 Johns. 456; 10 Am. Dec 273. 69, 479 Smiley v. Citizens P. & Xi. Ins. Co., 14 W. Va. S3. 471 Smillie v. Qninn, 90 N. Y. 492; 35 Hon, 332. 301 Smith «. Mtxa IMe Ins. Co., 49 N. T. 211. 232 Smith V. Agricnltaial Ins. Co., 6 N. T. St K. 127. 468 Smith V. Atlantic, etc., Ins. Co., 1 Bran. CoU. Cas. 673; 12 lAW Eep. 408. 443, 447 Smith V. Commercial TTnion Ins. Co., 33 Up. Can. Q. B. 69. 422 Smith r. Covenant M. B. Assn., 24 Fed. Rep. 685. 241, 262, 463 .Smith V. Farmers', etc., Ins. Co., 89 Pa. St. 287. 426 Smith V. Glen Falls Ins. Co., 62 N. T. 85. 486, 443 Smith V. Hrad, 75 Ga. 766. 301 Smith V. Insurance Co., 24 Pa. St. ^0. 169 Smith V. Mnt. I.. Ins. Co., 6 Fed. Bep. 682. 176 Smith o. Natches Steamboat Co., 1 How. (Miss.) 479. 142 Smith «. National I<. Ins. Co., IDS Pa. St. 177. 360, 373, 459 Smith V. Nelson, 18 Vt. 611. 77, 102 Smith V. Penn. Mut. I>. Ins. Co., 11 W. N. C. 296. 355 Smith V. Society, etc, 12 PhUa. 380. 94 Smith et al 0. Smith et al., 3 Desssn, 557. 70, 74 Smith V. Smith et al., 62 HI. 496. ' 127, 141, 142 Smith V. St. Louis Mnt. L. Ins. Co., 2 Tenn. Ch. 727. 372 Smith V. Virgin, 33 Me. 148. 28 Snell «. Insurance Co., 98 IT. S. 85. 278 Snook's Petition, 2 HUt. 576. 112 Snowo. Teed, 9 Eq. Cas. 622. 26B Snow V. Wheeler, 113 Mass. 179. 84, 441 Snyder v. Farmers', etc, Co., 13 W^end, 92. 196 Sociedad Union Espanola v. Docurro, 1 McGloln (La.), 218. 36 Society v Commonwealth, 58 Pa. St. 126. 97, 99, 109 Society, etc, v. Meyer, 52 Fa. St. 125. 442 Societe, etc., v. Morris, 24 La. Ann. 347. 366 Solomon v. Metropolitan Ins. Co., 10 Jones & Sp. 22. 446 Somer v. Meeker, 25 N. T. 361. 229 Somerset F. Ins. Co. v. May, 2 W. N. C. (Pa.) 43. 271 Soohan v. City of Pliiladel. et. al., 33 Pa. St. 9. 258 South Bay, etc., v. Gray, 30 Me. 547. 143 Ixxviii TABLE OF CASES. [The references are to the sections.] Southern Life Ins. Co. v. Booker, 9 Heisk. 606 ; 24 Am. Rep. 344. 203, 227, 228,277, 292, 853,369, 460, 469. Southern L. Ins. Co. v. Kemp- ton, 53 Ga. 339. 274, 433 Southern L. Ins. Co. v. Mc- Cain, 96 U. S. 84. 433 Southern Mut. L. Ins. Co. v. Montague, 2 S. W. Rep. 443 ; 8 Ky. L. Kep. 579. 373 Southern L. Ins. Co. v. Wil- kinson, 53 6a. 535. 462 Southern M. L. Ins. Co. v. Yates, 28 Gratt. 585. 458 Spare v. Home Mut. Ins. Co., 9 Sawy. 142; 17 Fed. Rep. 568. 281, 282, 299, 446 Spare v. Home Ins. Co., 8 Sawy. 618; 15 Fed. Rep. 707. 424 Spaulding v. Vermont, etc., Ins. Co., 53 Vt. 156. 406 Spencer v. Spencer, 11 Paige, 159. ' 266 Sperry's Appeal, 116 Pa. St. 391 ; 9 Atl. Rep. 479 ; 8 Cent. Rep. 215. 91, 94, 102, 106, 442 SpUler V. Maude, 10 Jur. (n. s.) 1089; 13 "W. R. 69. 44 Spinning v. Ohio L., etc., Co., 2 Dis. S. C. Cin. 336. 477 Splawn V. Chew, 60 Tex. 532. 161, 171, 178, 306, 308, 430, 431 Spooner v. Vermont M. F. Ins. Co., 63 Vt. 156 (see Spauld- iug V. Same). 436 Sproat V. Porter, 9 Mass. 300. 35, 112, 120 SpruUl V. North Carolina, etc., Ins. Co., 1 Jones L. 126. 338 St. Armande. La. Cie d* Assur- ance, etc., 9' Queb. L. B. 162. 412, 436 Stamm v. North Western Mut, Benefit Assn. (Mich.), 8 West. Rep. 771; 32 N. W. Rep. 710. 59, 478, 479 Stahdley v. Northwestern Mut. L. Ins. Co., 95 Ind. 254. 373 Stanton v. Home F. Ins. Co., 21 Low. Can. Jur. 211. 406 Stark Bank v. U. S. Pottery Co., 34 Vt. 144. 143 State V. Adams, 44 Mo. 570. 102, 442 State B. Addison, 2 S. C. 499. 44 State V. Ancker, 2 Rich. (S. C.) 245. 65, 138 State u. Bankers & Merchant's Mut. B. A., 23 Kani 499. 51, 162 State ex rel. Sibley v. Carteret Club, 40 N. J. L. 295 (see also Sibley v. Cartaret Club) . 100, 101, 44-' State V. Central Ohio Relief Assn., 29 Ohio St. 407. 46, 65 State V. Chamber of Com- merce, 20 Wis. 63. 97,103 State V. Citizens Benef. Assn., 6 Mo. Apl). 163. 51 State V. Critchett, 32 N. W. Rep. 787. 51 State V. Doyle, 40 Wis. 175. 472 State V. Farmers, etc., Benev. Assn., 18 Neb. 276; 25 N. W. Rep. 81. 51, 162 State V. Farris, 45 Mo. 183. 103 State ex rel., Waring v. Geor- gia Med. Soc, 38 Ga. 608. 442 State Ins. Co. v. Hughes, 10 Lea, 461. 179 State V. Ins. Co. of N. A. (Ind.), 16 West. Rep. 93; 17 N. East. Rep. 574. 473 State V. Lipa, 28 Ohio St. 665. 442 State Ins. Co. v. Maackens, 38 N. J. L. 564. 406, 411 TABLE OF CASKS. Ixxix [Th« relereDiCes are to the sections.] State ex rel., etc., v. Mer- chant's Exchange Benev. etc., 72 Mo. 146. 61, 162 State ex rel., etc., v. Miller et al., 66 la. 26. 51, 72, 73, 74 State 17. Monitor fire Assn., 42 Ohio St. 555. 378 State o. Moore, ?8 Ohio St.. 7. 65, 244 State V. Mut. Protectiye Soc, 26 Ohio St. 19. 51, 65 State V. Odd Fellows' Soc, 8 Mo. App. 148. 72, 76, 106, 123 State o. Overton, 24 N. J. L. 440. 86 State V. People's Ben. Assn., 42 Ohio St. 679. 55, 131, 168, 244 State V. Smith, 48 Vt. 266. 138 State V. Standard Life Assn., 38 Ohio St. 281. 61, 65, 85, 244, 311 State V. Trubey, 33 N. W. Rep. 554. 61 State V. Tudor, 5 Day, 329. 99 State o. Vigilant Ins. Co., 30 Kan. 685. 51 State v'. "Williams, 75 N. C. 134. 84 Statham v. N. Y. L. Ins. Co., 45 Miss. 581. 356 St. Clair Co. Ben. Soc. v. Fiet- sam, 97 m. 474. 465 Steele a. St. Louis M. L. Ins. Co., 3 Mo. App. 207. 433 Steen v. Niagara F. Ins. Co., 86 N. Y. 316. 426, 446 Steinbach v. Relief F. Ins. Co., ' 77N. Y.498: 12 Hun, 641-282 Stennett v. Penn. F. Ins. Co., ' ' 68 la. 674. 462 Stephenson v. Piscataqua F. & M. Ins. Co., 54 Me. 70. 460 Stephenson v. Stephenson, 64 la. 534; 21 N. W. Rep. 19; 307 Stetson V, Eempton, 13 Mass. 282. 87 Stevens v. Warren, 101 Mass. 664. 249, 802 Stewart ». Lee Mut., etc., Assn. (Miss.), 1 South. Rep. 743. 187 Stewart v. Northampton, etc., Ins. Co., 38 N. J. L. 436. 378 Stigler V. Stigler, 77 Va. 163. 299, 312 Stillwelli;. Mut. L. Ins. Co., 72 N. Y. 386. 292, 299 Stimpson v. Moflmouth, etc., Ins. Co., 47 Me. 37fl. 406 St. James' Club Case, In re, 2 D. G. M. &G. 383; 16 Jur. 1075. 108, 112 St. John V. American Mut. L. Ins. Co., 2 Duer, 419; 13 N. Y. 31; 64 Am. Dec. 529. 175, 177, 302, 303, 397 St. John's Mite Soc. v. Buckly (D. C), 5 Mackey, 406; 6 Cent. Rep. 292. 239 St. Louis Mut. Life Ins. Co. v. Graves, 6 Bush, 268. 834 St. Louis Mut. L. Ins. Co. . Grigsby, 10 Bush, 310. 371, 372 St. Louis Mut. L. Ins. Co. v. Kennedy, 6 Bush, 450.* 176, 276 St. Mary's Ben. Assn. v. Lynch (N. H.), 9 AtL Rep. 98; 4 N. Bug. Rep. 163. 67, 76 St. Mary's Ben. Soc. v. Bur- ford's Admr., 70 Pa. St. 321. 79, 85, 86, 90 St. Nicholas Ins. Co. v. Howe, 7 BOBW. 450. 140 Stoddard v. Onondaga Ann. Conference, 12 Barb. 573. 424 StokeU r. Kimball, 59 N. H. 18. 301 Stokes ». N. J. Pottery Co., 46 N. J. L. 237. 140 TABLE OF CASES. [The leferenceB are to the sections.] Stokes V. Cox, 1 H. & N. Exch. 320. 198 Stone V. Hackett, 12 Gray, 227. 292 Stone V. Hawkeye Ins. Co., 68 la. 737. 428 Stone V. Ins. Co., 78 Mo. 658. 173 Stone e. Knickerbocker L. Ins. Co., 52 Ala. 689. 312 Stoner v. Line, 16 W. N. C. 187. 250, 302 Stone V. United States Casualty Co., 34 N. J. L. 371. 183, 325 Story V. WiUiamsburg M., etc., Assn., 95 N. T. 474. 218, 259 Storer v. Wheatley, 1 Pa. St. 506. 260a Stout V. City Eire Ins. Co., 12 la. 371; 79 Am. Dec. 539. 201, 443 Stowe V. Phinney, 78 Me. 244. 452 St. Patrick's Male Soc. v. Mc- Vey, 92 Pa. St. 510. 92, 144, 187 St. Paul, etc., V. McGregor, 63 Tex. 399. 446 Stratton v. Allen, 16 K. J. Eq. 229. 156 Streetero. Western Union, etc., Soc, 31 N. W. Eep. 779; 8 West. Rep. 183. 336 Strickland v. Frichard, 87 Vt 324. 57, 441 Studwell V. Charter Oak Ins. Co., 17 Hun, 602. 456 Stylowc. Wis. Odd-fellows M. L. Ins. Co. 69 Wis. 224; 34 N. W. Rep. 151. 431 Suburban Hotel Co., In re, L. R. 2 Ch. App. 737. 59, 479 Succession of Hearing, 23 La. Ann. 326. 250 Sullivan v. Cotton States L. Ins. Co., 43 Ga. 423. 464 Sullivan v. Phoenix Ins. Co., 3^ Ean. 170. 163, 426, 428 Summers v. U. S. Annuity, etc.,Co.,13La.Ann.504. 250,325 Sun Mut. Ins. Co. «. Holland, 3 WIUs. (Tex.) 891. 454 Suppiger v. Covenant Mut. Ben. Assn., 20 Bradw. 596. 329, 336, 463 Sapplee d. Knights of Birming- ham, 18 W. N. C. 280. 170 Supple e. Iowa State Ins. Co., 58 la. 29. 385 Supreme Council, etc., v. An- derson, 61 Tex. 296. 468 Supreme Council v. Garrigus, 104 Ind. 133. 395a, 467 Supreme Council Am. Legion of Honor ». Perry, 140 Mass. 580; 5 DT. East. Bep. 634; 1 N. Eng. Rep. 715. 239,306 Sap. Counc. Cath. Mut. Ben. Assn. V. Pimane, 60 Mich. 82. 312 Sup. Counc. Catholic M. B. A. V. Priest et al.,46 Mich. 429; 9 N. E. Rep. 481. 237, 241, 254, 306, 308, 313 Sup. Counc. Royal Templars of Temperance v. Curd, 111 111. 284. 323, 326 Sup. Lodge K. of H. v. Abbott, 82 Ind. 1. 148, 386 Sup. L. K. &L. of H. V. Grace, 60 Tex. 571. 239, 266, 267, 270 Supreme Lodge K. of H. v. Johnson, 78 Ind. 110. 379, 380, 414, 457 Supreme Lodge K. of H. v. Martin et al. (Pa.), 12 Ins. L. J. 628; 13 W.N. C. 160. 246, 246, 256, 306 Supreme Lodge e. Nairn, 60 Mich. 44. (See also Knights of Honor v. Nairn). 261 Supreme Lodge K. of P. v. Schmidt, 98 Ind. 374. 460 TABLE OF CASES. Ixxxi [The references are to the sections.] Sup. Commandery, etc., e. Ainsworth, 71 Ala. 486; 46 Am. Rep. S32. 161, 177, 188, 822, 336, 837 Supreme Council, etc.; v. Curd, 111 ni. 284. 181 Sup. Council V. Fairman, 62 How. Pr. 886; 10 Abb. N. C. 162. 51, 53, 83 Supreme Council, etc. c. Gar- rigus, 104 Ind. 138. 73, 87,89, 105,107, 123 Supreme Council Eoyal Ar- canum V. Lund, 111. App. Ct. (1888). 216 Supreme Lodge Knights ot Honor V, Johnson, 78 Ind. 110. 161 Supreme Lodge v. Schmidt, 98 Ind. 374. 161, 170, 178, 247, 265 Susquehanna Mnt. F. Ins. Co. 0. Gackenback, 19 W. N. C. 287. 377 Susquehanna M. F. Ins. Co. e. Hallock (Pa.), 14 Atl. Bep. 167. 436 Susqnehanna Ins. Co. v. Fer- rine, 7 W. & S. 348. 157, 161 Susquehanna, etc., Ins. Co. v. Swank, 102 Pa. St. 17. 282, 458 Susquehanna Mut. Ins. Co. v. TunkhannockToyCo., 97 Pa. St. 424 Swan V. Liverpool L. & G. Ins. Co., 52 Miss. 704. 405, 406, 411, 436 Sweeney v. Bev. Hugh Mc- Laughlin Ben. Soc, 14 W. N. C. 466. 86, 87 Sweet V. Dutton, 109 Mass. 691. 260 Swett V. Citizens Mnt. Eel. Soc, 78 Me. 541 ; 7 Atl. Bep. 394; 3N. Eng. Bep. 288. 216, 225, 386, 431, 453 Swick V. Home L. Ins. Co., 2 Dill. C. C. 160. 231, 469 Swift's Executors v. Easton Ben. Soc, 73 Pa. St. 362. 38 Swift V. Mass. M. L. Ins. Co., 63 N. Y. 186. 460 SwUt t>. By. Cond. Mut. Assn., 96 in. 809. 168, 237, 246, 305 Swift V. San Francisco S. & E. Board, 67 Cal. 567. 241, 312 Sykora v. Forest City, etc., Ins. Co., 2 Cin. L. B. 223. 282 Symonds v. Northwestern M. L. Ins. Co., 23 Minn. 491. 179, 373 T. Tabor v. Goss, etc, Mfg. Co. (Colo.), 18 Pac Bep. 537. 454 Tabor v. Mich. Mut. L. Ins. Co., 44 Mich. 324. 371 Tafel V. Knights of the Golden Bule, 12 Cin. L Bill. 85. 294 Taft V. Ward, 106 Mass, 518. 29, 36 Tait V. N. Y. L. Ins. Co., 1 Flip. 288. 356 Tarbell v. Page, 24 111. 46. ■ 40 Tatum V. State, 63 Ala. 147. 231 Tayloe v. The Merchants F. Ins. Co., 9 How. 390. 175, 267, 272, 413" Taylor «. .Stna Ins. Co., 13 Gray, 434. 824, 407 Taylor v. Charter Oak L. Ins. Co., 9 Daly, 489; 59 How. Pr. 468; 8 Abb. N. C. 331. 3S5 Taylor «. Germanialns. Co., 2 Dill. 282. 368 Taylor v. Griswold, 14 N. J. L. 223. 85 Taylor r. L. Assn., 13 Fed. Bep. 493; 3 Fed. Rep. 465. 476 Taylor v. Slut. Ben. L. Ins. Co., 10 Hun, 52. 428 Ixxxii TABLE OF CASES. [The references are to the sectlons.j Taylor ». National Temperance K. Union (Mo.). 12 West Kep. 92; 6 S. W. Kep. 71. 463 Tebbetts v. Hamil/ton Mat. Ins. Co., 3 Allen, 569. 464 Tennant v Travelers' L. Ins. Co., 31 Fed. Rep. 322. 363, 366 Tennessee, etc., v. Davis, 100 U. S. 267. 472 Tennessee Lodge v. Ladd, 5 Lea, 716. 237, 305 Tenney B. East Warren, etc., Co., 43 N. H. 343. 138 Tenney v. N. E. Protective Union, 37 Vt. 64. 36 Terry's Will, In re, 19 Beav. 580. 256 Tessonv. Atlantic M. Ins. Co., 40 Mo. 33; 93 Am. Dec. 296. 177 Texas M. L. Ins. Co. v. Da- vidge, 51 Tex. 244. 465 Texas Banking, etc., Co. v. Hutchins, 53 Tex. 61. 455 Texas Banking & Ins. Co. v. Stone, 49 Tex. 4. 458 Thatch V. Metropolitan Ins. Co., 11 Fed. Rep. 29. 303 Thayer v. Middlesex Ins. Co., 10 Pick. 326. 353 Theodore v. New Orleans, etc., Ins. Assn., 28 La. Ann. 9! 7. 455 Thomas v. EUmaker, 1 Pars Sel. Cases, 98. 28 Thomas v. Leake, 67 Tex. 469; 3 S. W. Bep. 703. 255, 257, 264, 291, 295 Thompson v. Adams, 7 W. N. C. 281. 9l Thompson v. American Ton- tine, etc., Ins. Co., 46 N. Y. 674. 367 Thompson v. CundifE, 11 Bush, 667. 299, 312 Thompson v. Ins. Co., 104 XJ. S. 252. 153, 1S5 Thompson v. Knickerbocker L. Ins. Co., 104 U. S. 252; 2 Woods, 547. 365, 360, 371, 431 Thompson v. Ludington, 104 Mass. 193. 257 Thompson v. Phoenix Ins. Co., . 26 Fed. Eep.^ 296. 282^ Thompson v. Soc. Tammany, 17 Hnn, 305. 105. Thompson v. St. Louis Mut. L. Ins. Co., 62 Mo. 469. 361 Thompson v. Weems, L. R. 9 App. Cas. 671. 206, 233- Thornton v. Knight, 16 Sim. 508. 285. Thwing V. Great Western las. Co., 11 Mass. 93. 175, 413. Tiefenthal v. Citizens', etc., Ins. Co., 9 Colo. 295. 436 Tillman v. Davis et al., 95 N. T. 17; s. c. 47 Am. Bep. 1. 260> Tlmayenis v. Union Mut. L. Ins. Co., 22 Blatchf. 406; 21 Fed. Bep. 223. 299, 371, 411 Tisdale v. Conn. Mut. L. Ins. Co., 26 la. 170. 470, Titcomb v. Kennebunk M. F. Ins. Co. (Me.), 9 Atl. Rep. 732; 4 N. Eng. Bep. 411. 480' Titus V. Glen's Falls Ins. Co., 81 N. Y. 410. 411, 435, 436. Tobin V. Western Mut. Aid Soc, 72 la. 261; 33 N. W, Rep. 663. 431^ 453^ 469. Todd V. Emly, 8 Mees. & W. 506. 112, 120 Todd V. Moorhonse, 28 W. E. 155 ; L. R. 19 Eq, 69. 398- Todd B. Piedmont & ArUngton L. Ins. Co., 34 La. Ann. 63. 266, 270, 465 TABLE OF CASES. Ixxxiii [The references are to the sections.] Todd V. State Ins. Co., 11 Phila. 355. 175 Tolford V. Church (Mich.), 33 N. W. Bep.918; 9West»Eep. 885. ' 378 'Toram v. Harrison Ben. Soc, 4 Pa. St. 619. 57, 94, 442 Torrey e. Baker, I Allen, 120. 36, 38, 73, 92 Towne V. Fitchburg Ins. Co., 7 Allen, 61. .199, 204 Town of Venice v. Woodruff, 62 N. Y. 462. 287 Townsend v. Goewey, 19 Wend. 424. 29 Trager v. Louisiana Eqt. L. Ins. Co., 31 La. Ann. 235. 371, 464 'Traill ». Baring, 4 De Gex J. & S. 318. 274 Train v. Holland, etc., Ins. Co., 62 N. Y. 598. 173 Trenton, etc., Ins. Co. v. Jolin- son, 24 N. J. L. 676. 260, 251, 302, 303, 469 Tripp V. Ins. Co., 55 Vt 100. 433, 454 Trott V. City Ins. Co., 1 Cliff. 439. 450 Trough, In re, 8 Phila. 214. 297 Troy F. Ins. Co. v. Carpenter, 4 Wis. 20. 353, 454 Troy V. Sargent, 132 Mass. 408. 294, 302 Trustees v. Insurance Co., 18 Barb..69;19N. Y. 305. 277 Teutonia L. Ins. Co. v. Ander- son, 77 111. 384. 375 Teutonia L. Ins. Co. v, Mueller, 77 ill. 22. 353 Teutonia F. Ins. Co. «. Mund, 102 Pa. St. 89. 179 Turley v. North Am. F. Ins. Co., 25 Wend. 377. 177 Turner «. Phcenix Ins. Co., 65 Mich. 236. 426 Tutt V. Covenant L. Ins. Co., 19 Mo. App. 677. 371 Tyler v. N. A. Ins. Co., 4 Eobt. 151. 173 Tyler v. Odd-fellows' Mut. R. Assn., 145 Mass. 134; 13 N. East. Bep. 360; 5 N. Eng. Hep. 191. 243, 248, 260, 263 Tyrell v. Washburn, 6 Allen, 466. 28, 37 U. XJnderhiU v. Agawam Ins. Co., 6 Cush. 440. 426 Underwood v. Iowa Leg. of Honor, 66 la. 134. 377 Underwriters Agency v. Suth- erliu, 55 Ga. 266. 443 Union Bank v. Bidgely, 1 Harr. & G. 324. 80 Union Cent. Life Ins. Co. v. Cheever, 11 Ins. L. J. 264; (affd. Sup. Ct. Ohio.) 234 Union Central L. Ins. Co. v. Cheever, 36 Ohio St. 201. 460 Union Cent. L. Ins. Co. v. Pottker, 33 Ohio St. 459. 360 362, 376 Union Insurance Co. v. Smart, 60 N. H. 458. 174 Union, etc., Mining Co. v. Rocky Mt. Nat. Bk., 2 Colo. 248. 125 Union Mut. Aid Assn. v. Mont- gomery, 38 N. W. Rep. 588; 14 West, Rep. 877. 255, 267, 264, 291 Union Mut. Ins. Co. v. Slee, 110 HI. 35. 159 Union Mut. F. Ins. Co. v. Keyser, 32 N. H. 313; 64 Am. Dec. 377. 171 Ixxxiv TABLE OF CASES. ' [The references are to the sections.] TTnion Mnt. F. Ins. Co. v. Spaulding, 61 Mich. 77; 27 N. W. Rep. 860. 378 Union Mut. L. Ins. Co. «. McMnllen, 24 Ohio St. 67. 431 Union Mnt. L. Ins. Co. ». Stevens, 19 Fed. Kep. 671. 299 Union Mut. Life Ins. Co. b. White, 106 111. 67. 127 Union Mut. L. Ins. Co. v. Keif, 36 Ohio St. 599; 88 Am Bep. 613. 231 United Brethren, etc., Soc. v. Kitner, 12 W. N. C. (Pa.) 76. 223 United Brethren M. A. Soc. v. McDermond, 12 W. N. C. 73. 459 United Breth. Mnt. Aid Assn. V. Miller, 107 Pa. St. 162. 294 United Brethren M. A. Soc. v. O'Hara (Pa.), 13 Atl. Rep. 932; 12 Cent. Rep. 682. 462 United Brethren, etc., Soc. v. White, 100 Pa. St. 12. 225, 226 United Hebrew, etc., v. Ben- shimol, 130 Mass. 325. 36 United States Ex. Co. v. Bed- bury, 34 m. 466. 424 U. S. Bank v. Burke, 4 Blackf. 141. 312 United States Trust Co. v. Brady, 20 Barb. 119. 42 United States Ins. Co. v. Lud- wig, 108 lU. 514. 443 Unity M. L. Assn. «. Dugan, 118 Mass: 219. 295, 308 Universal F. Ins. Co. v. Weiss, 106 Pa. St. 20. 443, 445 Universal Fire Ins. Co. v. Block (Pa.), 1 Atl. Rep. 523 Universal L. Ins. Co. v. Bin- ford, 76 Va. 103. 476 403, 412 Universal L. Ins. Co. ». Cog- bill, 30 Gratt. 72. 452 Universal L. Ins. Co. v. White^ head, 58 Wis. 226. 37» Universal Non-Tarifl Ins. Co., Inre, L. R. 19 Eq. 385. 159, 222, 27& UnseU B. Hartford L. & A. Ins. Co., 32 Fed. Rep. 443. 367, 431 Utter V. Travelers' Ins. Co., 32 N. W. Eep. 812; 9 West. Bep. 108. 33» T. Valley MutT L. Assn. v. Tee- wait, 79 "Va. 4,21. 250, 460, 462 Valton V. Loan Fnnd, etc., Soc, 1 Eeyes, 21. 223, 462 Valton V. National, etc., Soc, 20 ». T. 32. 213, 250, 302- Van .411en v. Farmers', etc., Ins. Co., 4 Hnn, 413. 422- Vauatta v. N. J. Mnt. L. Ins. Co., 31 N. J. Eq. 15. 378, 478, 479 Van Bibber's Adm. v. Van Bib- ber, 82 Ky. 347. 161, 236, 237, 241, 243, 244, 254, 255. Van Creelen v. Ins. Co., 35 La. Ann. 226. 374 Van Dnersen v. Scanlan, 7 Cin. L. Bui. 188. 375- Van Hagen v. Van Rensselaer, 13 Johns. 423. ■ 17» Van Hon ten b. Pine, 36 N. J. Eq. 138. 108, 441, 442, 453 Van Houten v. Pine, 38 N . J. Eq. 72. 38& Van Poncke ». Netherland Soc, etc. (Mich.), 6 West. Rep. 132; 29 N. W. Bep. 863. 91,94,450 Van Schoick cNlagara F. Ins. Co., 68 N. Y. 434. 154, 40» Van Slyke v. Trempealeau, ttc, Ins. Co., 48 Wis. 683. 271 TABLK OF CASES. lxx:xv [The references are to the sections.] "Van Tuyl v. Westchester F. Ins. Co., 55 N. Y. 657. 279 Van Valkenburgh v. Am. Pop- ular L. Ins. Co., 70 N. Y. 605; 9 Hun, 58S. 231, 469 Van Voorhls v. Brintnall, 23 Hun, 260. 257 Van Zandt v. Ins. Co., 65 N. Y. 169; 14 Am. Rep. 215; 4 Big. L. & Ace. Ins. Cas. 313. 329, 334, 462 Veth c. Clinton F. Ins. Co., 30 Fed. Rep. 668. 443 Vidal V. Girard, 2 How. 127. 38 Vlele V. Germania Ins. Co., 26 la. 55. 431 Vilbon V. Marsonin, 18 Low. Can. 249. 801 Virginia, etc., Ins Co. v. Kloe- ber, 31 Gratt. (Va.), 749. 219 Volger V. Ray, 131 Mass. 439. 112 Vollman's Appeal, 93 Pa. St. 50. 307 Von Bories v. United, etc., Ins. Co., 8 Bush, 133. 152 Von Lindenau v. Desborongh, 3M. &Rob. 45;8B. &C. 586; 3 C. & P. 350. 211, 250 Von Schmidt v. Huntington, 1 Cal. 55, 73. 69 Vose V. The Eagle L. & H. Ins. Co., 6 Cush. 42. 160, 196, 214, 218 W. Wachtel v. Noah Widows' etc., Soc, 84N. Y. 28 ; 9 Daly, 476. 86, 101, 103, 381, 389 Wackerle «. Mutual L. Ins. Co., 14 Fed. Eep. 23; 4McC. 508. 470 Wade V. Jones, 20 Mo. 75. 256 Waite V. Windham Co. Mining Co., 37 Vt 608. 138 Waldeck o. Springfield F. & W. Ins. Co., 66 Wis. 96. 471 Waldrom v. Waldrom, 76 Ala. 285. 292- Walker v. Farmers' Ins. Co., 51 la. 679; 2N. W. Rep. 583. 270, 459 Walker v. Frobisher, 6 Ves. 69- 102- Walker v. Metropolitan Ins. Co., 56 Me. 371. 172, 173- Wall V. Howard Ins. Co., 14 Barb. 383. 210- Wall V. Equitable L. Assur. Soc, 32 Fed. Rep. 273. 175, 17S- Wallace v. German Am. Ins. Co., 1 McC. 335; 2 Fed. Rep. 638 ; 4 McC. 123. 460' Waller v. Northern Assn. Co., 64 la. 101. ^ 443 Waller v. Thomas, 42 How. Pr. 337. 35. Walsh V. Mtnakli. Ins. Co., 30 la. 138. 466 Walsh V. Vermont, etc., Ins. Co., 54 Vt. 361. 412^ Walton V. Cotton, 19 How. 355. 257 Walworth Co. Bank v. Far- mers', etc., Co., 14 Wis. 325. 140 Walworth v. Holt, 4 Myl. & Cr. 619. 29 Want V. Blunt, 12 East, 183. .S70 Warden v. Union Pac. R. Co., 103U. S. 651. 131 Wamock i>. Davis, 104 U. S. 779. 250, 302, 396, 397 Washburn v. Great Western Ins. Co., 114 Mass. 176. 282 Washington Ben. Soc. t>. Bach- er, 20 Pa. St. 426. 442 Washington Mut. L. Ins. Co. V. Haney, 10 Ean. 626. 211, 460, 462: Ixxxvi TABLE OF CASES. [The references are to the sections.] Washington Life Ins. Co. v. Schalble, 1 W. N. C. 369. 208 Washington, etc., Assn. v. Wood, 4 Mack. 19. 291, 294 Washoe Tool Co. v. Hibemia F. Ins. Co., 66 N. Y. 613; 7 Hun, 74. 433 Wason V. Colbum, 99 Mass. 342. 241 Waterhonse v. Murgatroyd, 9 L. J. Ch. 272. 67 Watertown Ins. Co. v. Gfover, etc., Co., 41 Mich. 131. 299 Watson V. Ayery, 2 Bush, 332. 77, 78 Watson V. Avery, 3 Bush, 635. 77, 78 Watson V. Centennial Mut. L. Assn., 21 Fed. Kep. 698. 250, 427 Watson V. Farris, 45 Mo. 183. 78 Watson V. Jones," 13 Wall. 679. 68, 74, 76, 389 Watson V. Mainwaring, 4 Taunt. 763. 232, 234 Waynsboro Ins. Co. v. Con- over, 98 Pa. St. 384. 425, 446 Weatly v. Northwestern B. & M. A. Assn., 19 Bradw. 327. 381, 382 "Webber v. Eastern B. E., 2 Met. 147. 462 "Webster v. Buffalo Ins. Co., 7 Fed. Kep. 399 ; 2 McC. 348. 431 Webster v. Phoenix Ins. Co., 36 Wis. 67. 436 Weed V. Mut. Ben. L. Ins. Co., 70 N. J. 661 ; 9 Jones & Sp. 476. 334, 457 Weed V. Schenectady Ins. Co., 7 Lans. 462. , 183 Wegman v. Smith, 16 W. N. C. 186. 302 WeU V. TrafEord, 3 Tenn. Ch. 103. 306 Weingartner v. Cliarter Oak L. Ins. Co., 32 Fed. Bep. 314. 476 Weisert v. Muehl, 81 Ky. 341. 303, 311 Welles V. Yates, 44 N. Y. 625. 279 Wells V. Gates, 18 Barb. 654. 32, 38 Wells V. Kahway White Kub- ber Co., 19 N. J. Eq. 402. 138, 139 Wells V. Turner, 16 Md. 133. 36 Welsh V. Crater, 32 N. J. Eq. 177. 260 Welts V. Conn. Mut. L. Ins. Co., 46 Barb. 412. 826 Wemyss v. Med. Ins., etc.,Soc., 11 Ct. of Sess. 2 Ser. 346. 274 Wendt V. Iowa Legion of Honor (la.), 34 N. W. Kep. 471. 161 Werner v. Metropolitan L. Ins. Co., 11 Daly, 176. 369 West Branch Ins. Co. v. Hel- fenstein, 40 Pa. St. 289. 299, 405, 406 Westchester F. Ins. Co. v. Dodge, 44 Mich. 420. 443 Westchester, etc., Ins. Co. v. Earle, 33 Mich. 150. 147, 171, 426 Westcott V. Minnesota Mining Co., 23 Mich. 145. - 88 Western Ass. Co. v. Eector, 9 Ky. L. Bep. 3. 428 Westfall V. Hudson Eiver F. Ins. Co., 2 Duer, 495.- 198 Weston V. Richardson, 47 L. T. (N. s.) 514. 292, 296 West Kockingham Mut. F. Ins. Co. V. Sheets, 26 Gratt. 854. 412 Wetmore v. Mut. Aid & Benev. Assn., 23 La. Ann. 770. 24, .. White- hurst (Va.), 1 S. E. Rep. 801. 241, 256 Whiting «. Mass. Mut. L. Ins. Co., 29 Mass. 240. 363 Whitley v. Piedmont, etc., Ins. Co., 71 N. C. 480. 274*369 Whitley v. Equitable L. A. Soc, (la.), 39 N. W. Rep. 369. 470 Whitman v. Porter, 107 Mass. o2K 29 Whitridge t>. Barry, 42 Md. 140. 175, 301 Wlggin V. Knights of Pythias, 31 Fed. Rep. 124. 180, 889 WUIcuts V. Northwestern Mut, L. Ins. Co., 81 Ind. 300. 180, 366, 366, 369 Wilkins r, Ordway, 69 N. H. 878; «. e. 47 Am. Rep. 216, . 260 Willjenson v. Conn. Mut. L. Ins. Co., 80 la. 119; 6 Am. Rep. 667. 203, 235 Wilkinson v. First Nat. Ins. Co., 72 N. Y. 499. 448, 445 Williams v. Carson, 2 Tenn. Ch. 269. 806 Williams v. Hartford Ins. Co., 64 Cal. 442. 450 Williams v. Mut. Ins. Co., 20 Vt. 223. 443 Williams v. N. Eng. F. Ins. Co., 29 Me. 466. 44» Williams v. North German Ins. Co., 24 Fed. Rep. 625. 281 Williams v. N. E. Mutual, etc., Ins. Co., 31 Me. 227. 171 Williams v. Washington L. Ins. Co., 31 la. 641. 363 Williamsburg City, etc, Ins. Co. V. Cary, 88 111. 468. 412" Wilmaser v. Continental L. Ins. Co., 66 la. 417. 292 Wilmer v. Atlantic, etc., Co., 2 Woods, 418. 477 Willis ». Germania Ins. Co., 79 N. C. 285. 404, 406 Willis V. Poole, 2 Park, on Ins. 660. 203, 23i Wilson V. Mta& Ins. Co., 27 Vt. 99. 197, 443 Wilson t». Conway M, F. Ins. Co., 4 R. I. 141. 147 Wilson V. Hampden F. Ins. Co., 4 R. L 159. 214- Wilson V. Lawrence, 76 N. Y. 686; ISHun, 238. - 301 Wilson V. State F. Ins, Co., 7 Low. Can. J. 223. 443 Winans v. Allemanta Fire Ins. Co., 38 Wis. 342. 163 Wing V. Harvey, 6 De 6. M. & G. 265; 27 E. L, & Eq, 140. 324- Ixxxviii TABLE OF CASES. [The references are to the sections.] Winnesheik Ins. Co. v. Holz- grafe, 53 lU. 523. 270 "Winindger ». Globe Mnt. L. Ins. Co., 3 Hughes, 257. 358 Winsor v. Odd-fellows' Assn., 13 R. I. 149. 257 Withey v. Mangles, 10 Clark & Fin. 215. 260 "Woia V. Com. Mut. L. Ins. Co., 5 Mo. App. 236. 339 "Womersley v. Merit, L. K. 4 Eq. Cas. 695. 29 "Wood V. Dwarris, 11 Exch. 493; 25 L. J. Ex. 129. 363, 466 Wood V. Finch, 2 Post. & Pin. 447. 112 "Wood 0. Humphrey, 114 Mass. 185. 94, 450 Wood c. Insur. Co., 32 N. Y. 619. 277 "Woodbury Savings Bank v. Charter Oak Ins. Co., 31 Conn. 517. 153, 222, 278, 428, 458 Woodfln ». Ashville, etc., Ins. Co., 6 Jones L. 558. 250, 352, 377 Woolsey e. Independent Order of Odd-fellows, 61 la. 492; 16 N. W. Kep. 576. 94, 106, 414 WoodrufE ». Imperial F. Ins, Co., as N. T. 133. 198 Wood V. Wood, 1,. E. Exch. 190. 102 Worcester Bank v. Hartford Fire Ins. Co., 11 Cush. 265; 59 Am. Dec. 145. 147 Wordenv. Guardian, etc., Ins. -Co., 7 Jones & Sp. 317. 370 Worley v. Northwestern Ma- sonic, etc, 3 McCrary, 53 ; 10 Fed. Rep. 227; 11 Ins. L. J. 141. 161, 236, 237, 239, 241, 244, 254, 312 Worsley v. Wood, 6 T. R. 710. 471 Worthington v. Curtis, L. E. 1 Ch. D. 419; 45 L.J. Ch. D. 259; 33 L. T. (N. 8.) 828; 24 W. R. 221. 250 Worthington v. Charter Oak L. Ins. Co., 41 Conn. 399. 351, 356, 337 Wright r. Equitable L., etc., Soc, 50 How. Pr. 367. 204 Wright V. Equitable L. Ins. Co., 9 Jones & S. 1. 369 Wright V. Sun Mut. Ins. Co., 6 Am. L. Reg. 485. 175 Wright V. Trustees, HofE. Ch. 202. 260 Wuesthoff V. Germania L. Ins. Co. (N. T.), 14 N. East. Rep. 811 ; 10 Cent. Rep. 500. 406 Wylde V. Union Marine Ins. Co., 1 Nova Scotia Eq. 208; 1 Russ & Ch. (Nova Sc.) 205. 280 T. Yeates v. Roberts, 3 Drew, 170; 1 Jur. (N. 8.) 319; afEd. 7 DeG. M. & G. 227. 72 Yeaton v. Fry, 5 Cranch, 341. 179 Yoe 'v. B. C. Howard Mas. Mut. Ben. Assn., 63 Md. 86. 355, 381, 384, 385 Yonge V. Equitable L. Ass. Soc, 30 Fed. Rep. 902. 272 York, etc., R.Co. e. Hudson, 16 Beav. 485. 131 York County, etc., Assn. v. Myers, 11 W. N. C. 541. 452, 453 Young V. Mut. L. Ins. Co. (U S. Cir. Ct. Cal.), 2 Ins. L. J. 298. 429a TABLE OF CASES. Ixxxix [The references are to the sections.] Yonng V. Travelers' Ins. Co., ISAtl. Rep. 896; 6 N. Eng. Bep. 432. 396a Z. Zabriskie «. Hackensack, etc., 18 N. J. Eq. 178. 88 Zallee v. Conn. Mnt. L. Ins. Co., 12 Mo. App. 111. 282, 42» Zlegler v. Hut. Aid See, 1 McGloin (la.), 284. 414, 457 Zielke v. London Ass. Corp., 64 Wis. 442. 486, 46» THE LAW OF BENEFIT SOCIETIES. CHAPTEE I. INTRODUCTORY. Definition, History and Extent of Benefit Societies ; Orioih AND Growth of Life Insurance. § 1. Natiire of Benefit Societies. 2. They are Social Clubs. 3. They are Business Organizations. i. Kindred Societies. 5. Ancient Origin of Benefit Societies. 6. History of Guilds. 7. Decay of Guilds : their Successors. 8. History of Clubs. 9. Analogies between Ancient and Modem Clubs. ■ 10. The English Friendly Societies. 11. The American Beneficiary Orders. 12. The Secret Fraternities. 13. Allied Organizations. 14. Characteristics in common. 15. Definitions of Life Insurance. 16. The English Definitions. 17. American Definition. 18. Various classes of Life Insurance. 19. Assurance and Insurance. 20. History of Life Insurance. 21. An early English Case. 21a. First American Case. 22. Method of Conducting Business. 23. Analogies between Benefit Societies and Life Insurance Companies. 24. Early Beneficiary Life Insurance Cases in the United States. 25. Definition of Terms used in Insurance. § 1. Nature of Benefit Societies. — The modern mu- tual benevolent life insurance organizations, generally called 1 e 2 rNTEODUCTOET. benefit societies, have come prominently into public view only during the last twenty-five years. From this fact we are not to conclude that they are whoUy a modern institu- tion; on the contrary, they are the composite results of the experience of generations and centuries, they represent what is best and most useful of the multitude of social as- sociations of all kinds that have existed in all times ia every land. They seem to have sprung suddenly into the strength of mature life, yet, in fact, they have been developing for himdreds of years. Benefit societies have a dual nature and in determining their responsibilities, powers and rights and those of their members this fact must never be lost sight of. Very dif- ferent conclusions wiU. be reached as we consider one class of characteristics or the other.^ § 2. They are Social Glabs. — They are, in the first place, social organizations, or clubs of congenial associates, bound together by secret obligations, mystic signs and fra- ternal pledges. They have generally initiatory rites and ceremonials and a more or less elaborate ritual ; their mem- bers are pledged to fraternity and mutual assistance in times of distress and need. Usually the organization is made up of local lodges, or societies, with higher, grand or supreme lodges, the latter being fountains of law for the whole association and the corporate entities of the confed- erations.^ Considered as clubs, questions may arise as to their power over their members, or, if unincorporated, the personal liar bility of the latter to creditors of the association. In settling these external and internal controversies the prin- ciples of the law of agency apply ; • or mandamus is resorted 1 Mnlroy s Knights of Honor, 28 Mo. App. 163. » See post, § 11. « Post, §§ 35, 36. INTEODUCTORT. § 4 to for the restoration of members wrongfully expelled,^ or courts of equity interfere to wind up the societies and dis- tribute their assets, or exercise other supervisory powers.^ § 3. They are Business Organizations. — They are also business corporations and derive their name of benefit soci- eties from this fact. All of them collect, monthly or oftener, from their members certain contributions or assess- ments, in consideration of which they agree to pay to the member, if sick or disabled, an agreed amount, or upon his death to pay to his designated beneficiary a specified sum, or an amount equal to the aggregate of one assessment not exceeding a certain sum. In most cases these beneficiaries must be of the family of the deceased or those dependent upon him in some way for support.. In token of these rights certificates of membership are generally issued. These societies are the poor man's life insurance com- panies, for they furnish to those of moderate incomes a cheap and simple substitute for life insurance. The assess- ments are seldom in excess of one or two dollars, are called as occasion requires, but as a rule every month, and the benefit paid is from five hundred to five thousand doUars. Litigation often arises over these contracts, and, as we shall see,* involves the application of the principles of the law of life insurance. This litigation is increasing in vol- ume and often presents complicated and interesting ques- tions of law. § 4. Kindred Societies. — There are also organizations which are benefit societies only in name, but are similar to them in having their Insurance feature. Such are the asso- ciations collateral to the great secret societies, the Free- 1 Post, § 442. * Post, §§ 69, 108, 442. » Post, § 61. § 6 INTEODUOTOBT. masons and Odd-fellows. While their membership ia drawn from the orders, whose names they respectively bear, the insurance feature is the one object of the organizations and they are practically mutual life insurance companies, having a different plan from the older regular life insur- ance companies. Of these societies we shall speak later.* § 5. Ancient Origin of Benefit Societies. — Benefit soci- eties, as now known, are the legitimate successors of the clubs and guilds that have existed from ancient times in all countries. By the processes of increasing and extending civilization with its new needs and greater knowledge, each succeeding generation has improved upon the customs and resources of its predecessors, and so, through the centuries, we can trace the gregarious habit and co-operative idea, until from the numerous sodalities and secret societies of remote periods it leads to the formation of the social and in- dustrial associations of the present century, — to the friendly societies of Great Britain and the co-operative life insurance and fraternal bodies of the last quarter century in this country. § 6. History of Ouilds. — Men are social beings and their instincts and needs have, from the earliest times, caused them to unite with each other for the pleasures of mutual enjoyment or for the attainment of a common purpose. They have sought the power of numbers for resisting oppression, or mutual assistance in times of need, and again, their affinities for those having similar occupations and in- terests have led to the formation of societies or guilds. The Eranoi of Greece and the Collegia of Rome were the earliest of these associations and they continued in various forms through the decline of the empire, reviving and gain- ing new vigor as the guilds of the middle ages. " The es- sential principle of the guild is the banding together for 1 Post, § 18. 4 tNTKODUOTORT. § 6 mutual help, mutual enjoyment and mutual encouragement in good endeavor." These societies were numerous in the palmy days of Eome, when most of them were trade cor- porations devoted to the interests of their crafts, while some were formed for good fellowship, to promote religion and to provide for burial. The highest persons were often glad to belong to them and many were exceedingly rich and influen- tial. The plan of organization was simple ; they chose their own officers, made rules for self government, collected con- tributions for a common ;fund and met and feasted together at stated times. In the middle ages social guUds sprang up all over Europe, but chiefly in England and Germany and one or more was found in every village. Their objects, says an authority ,i included " not only devotions and orisons, but also every exercise of Christian charity, and, therefore, above all things, mutual assistance of the guild brothers in every ex- igency — especially in old age, in sickness, and in cases of impoverishment, — if not brought on by their own folly, — and of wrongful imprisonment, in losses by fire, water or ahipwreck, aid by loans, provision of work, and lastly the burial of the dead. It included further the assistance of the poor and sick, and the visitation and comfort of pris- oners not belonging to the guild." ' In England many of these guilds numbered among their members men and women of all ranks and were rich and powerful, so that kings and princes did not disdain to be- come guild brethren. Henry IV. and Henry VI. were members of one organization and Henry VIII. of another. The work done by these societies was humane and charita- ble; they furthered public and benevolent objects and founded schools and colleges ; they assisted in the construc- tion of municipal works and were a valued adjunct in the proceedings of the important cities. Their social features 1 Brentano ; " Histoiy and Development of Guilda." § 6 ISTEODUCTORY. were popular and highly appreciated in their communities. When the Reformation came the guilds in most Protestant countries were abolished under pretense of their being su- perstitious foundations. In contradistinction from the social were the trade guilds, or merchant-guilds and craft-guilds, which attracted more attention because of their wealth and importance. Returns of aU guilds were made into chancery in 1389, and the bor- ough records of England and Scotland^ show the influence and power of the trade associations. " The guild-merchaat arose in this way:, the same men who, in the growth of towns became citizens by reason of possessing town lands, frequently were also traders; the uncertain state of society in early times naturally caused them to unite for protection of their trade interests in a gilda mercatoria, which made internal laws akin to those of other guilds; the success of these private interests enlarged their importance ; and when the towns and boroughs obtained confirmation of their mu- nicipal life by charter, they took care to have it included that the men of the place should also have their guild- merchant. Thus these guilds obtained the recognition of the State ; in their origin they had been as other guilds, partaking especially of the character of peace-guilds, but now the citizens aud the guild became identical, and what was guild-law often became the law of the town. In great cities, such as London and Florence, we do not hear of merchant-guilds ; ^ there the separate occupations or crafts early asserted their associating power and independence, and the craft-guilds gradually took a place in the organiza- tion of the town government. Many craft-guilds, the heads of which were concerned in the government of the commune, are found in Italy between the ninth and twelfth centuries.^ But in England and the north of Europe the ^ Norton's Commentaries on the History of London. * Perren's Hist, de Flofence. 6 rUTRODUCTORT. § 6 guilds-merchant daring this period, having grown rich and l^annical, excluded the landless men of the handicrafts; these then uniting among themselves, there arose every- where by the side of the guilds-merchant the craft-guilds, which gained the upper hand on the Continent in the struggle for liberty in the thirteenth and fourteenth centuries. In England these companies usually existed side by side with the old town or merchant-guild, until at length their increasing importance caused the decay of the old guilds, and the adop- tion of these crafts as part of the constitution of the towns (thirteenth to fifteenth century). The separation of the richer, and perhaps the older, from the poorer of the com. panics occurred, and thus arose the paramount mfluence of a few, — as the twelve great companies of London, the Arti Majori of Florence, and others. " The constitution of the trade-guilds was formed on the model of other guilds : they appointed a master or alder- man and other officers, made ordinances, including pro- visions for religious observances, mutual help and burial; the town ordinances yet remaining of many places, as^ of Berwick, Southampton and Worcester, show traces of the trade laws of the old guild-merchant. As their principal objects, ' the craft-guildmen provided for the maintenance of the customs of their craft, framed further ordinances for its regulation (including care against fraudulent workman- ship), saw these ordinances properly executed, and pun- ished the guild-brothers who infringed them. Thongh the craft-guUds, as voluntary associations, did not need con- firmation by the authorities at their birth, yet this confirm- ation became afterwards of the greatest importance, when these guilds wanted to be recognized as special and inde- pendent associations, which were thenceforth to regulate the trade instead of the authorities of the town.' ^ Hence obtained the practice of procuring a charter in confirmation 1 Brentano ; Histoiy and Development of Gnllds. § 8 INTRODUCTOET. and recognition of their laws, in return for which certain taxes were paid to the king or other authority. It is there- fore erroneous to state, as is sometimes done, that these companies owe their origin to royal charter, or that they required a license." ^ § 7. Decay of Guilds, Their Snccessors. — Under the influence of the refinements of civilization and the new necessities of commerce, as well as the strong arm of the Reformation and changing human tastes and recreations, the social, merchant and craft guilds practically lost their pop- ularity and power, and even their very being, though a few of the latter may even yet be in existence. The social guilds were succeeded by the modern friendly societies and social and literary clubs, and probably also in part by the great secret fraternities like the Freemasons and Odd-fel- lows. The merchant guilds gradually disappeared and our present Boards of Trade and Chambers of Commerce grew up. The craft guilds may be looked upon as in one sense the parents of the Trade Unions of the present century. Of these clubs, secret fraternities and the English friendly societies, we shall speak in the order named. § 8. History of Clubs. — Clubs have been said to be the natural and necessary off-shoot of men's gregarious and social nature, and the records of nations show that they have flourished in all countries from the beginnings of history. They were particularly numerous in the prosperous days of Greece and Rome, and interesting statements are made of their workings and influence. They were religious, com- mercial, political or merely social, according to the class of people who were members, though the most of them were a species of craft guilds, or formed for religious purposes. All, undoubtedly, combined pleasure with business, or worship, and met for social relaxation. 1 L. Tonlmin Smith in Encyclopaedia Brltannica; article " Gnild.' 8 IHTEODUCTORT. § 8 In anoient times the State did not always countenance the worship of strange gods, so that the devotees of new deities associated together in clubs and met in secret. Little, however, is known of their rites or ceremonies. The great secret organizations, like the Pythagoreans, Essenes, Car- mathites and Fedavi, or the grosser Bacchanalians, are described in history, and their philosophical teachings have been the subject for multitudes of essays and ponderous tomes. It is not to our purpose to enter into a prolonged discussion of the work of these dead and buried institutions, we can merely refer to them. There were, in the early days before the Christian era, or shortly afterwards, many clubs organized for private advantage. " There was nothing in the functions of these clubs to obtain for them a place in the page of history. Thfe evidence, therefore, of their existence and constitution is but scanty. Monumental inscriptions, however, tell us of clubs of Eoman citizens in some of the cities of Spain, of a club of strangers from Asia resident in Malaga, of Phoenician residents at Pozzuoli, and of other strangers else- where. These all were probably devised as remedies against that sense of ennui and isolation which is apt to come over a number of foreigners residing at a distance from their native countiy. Something of the same kind of feeling may have led to the toleration of a club consisting of old soldiers who had been in the armies of Augustus ; these were allowed to meet and fight their battles over again, spite of the legal prohibition of military clubs. Another military club of a different kind existed among the oflScers of a regiment engaged in the foreign service in Africa. Its existence can have been no secret, for its rules were engraved on pillars which were set up near the head- quarters of the general, where they have lately been found in the ruins of the camp. The contribution of each mem- ber on admission scarcely fell short of £25, and two-thirds of this sum were to be paid to an heir or representative on 9 ^ 3 INTBODDCaCOET. . the occasion of his death, or he might himself recover tiiis proportion of his original subscription on retirement from military service. The peculiarity, however, of this aristo- cratic collegium was this, that it provided that a portion of the funds might also be spent for other useful purposes, e.g., for foreign traveling. It is to be presumed that a member who had availed himself of this privilege thereby for- feited aU claim to be buried at the expense of his club." ^ The extent of the clubs of the middle ages is not accu- rately known, for the difference in those countries between these clubs and the guilds of various kinds was slight. In the early part of the eighteenth century the lodges of Odd- fellows and Freemasons appeared, tracing their ancestry back to the remote ages of antiquity, and perpetuating to some extent the ancient rituals of very old secret organiza- tions. The true precursors of the Masons were probably the mediaeval building organizations, for example, the stone-masons of Germany, who had religious ceremonies, oaths, benefits, burial funds and registers, and officers by whom they were instructed in secret. Such associations existed in Gaul and Britain for centuries and as early as the twelfth century the Bauhutten had a general associa- tion, secret signs and ritual, and ^aded divisions or de- grees. The word lodge first occurs in 1491 in a statute governing the Masons at Edinburg.^ The Freemasons and Odd-fellows had their mystic signs of recognition, secret initiatory rites and ceremonies, various grades of dignity and honor, and performed extensive social and benevolent work. They now number their members by millions.' 1 Canon J. S. Northcote in Encyclopsedia Britannica. ' Encyclopaedia Britannica, art. " Freemasons." * In 1881 in Great Britaih there were 10,000 lodges of Freemasons with 1,000,000 members or more, and over 500,000 Odd-fellows. In America there are even a larger number of both orders. In 1881 the British Odd- fellows had a capital of over five million pounds sterling. Encyc. Brit. 10 INTRODUCTOET. § 9 The modern clubs of Europe are numerous and wealthy, and have been organized for literary and political, as well as for social objects, and in London especially some are flourishing whose names are known throughout the world. The courts were at an early period called upon to adjudi- cate concerning the individual liability of the members of these clubs for the debts of the association as well as the remedies of members unjustly expelled.^ In America clubs are increasing rapidly and few cities of any size can be found where they do not exist, while lodges of the great secret fraternities are in every village, and have been and are immensely popular. § 9. Analogies between Ancient and Modern Clubs. — Many analogies can be traced between ancient and modern clubs and the ecclesiastical, political and secret societies of recent times. Viewed from a legal standpoint, they are all formed upon essentially the same principles. Generally, they are unincorporated voluntary associations, but in probably every State they may incorporate under acts of the legislatures regulating the formation of corporations for benevolent, charitable and educational purposes . By the provisions of these statutes they are allowed special privil- eges, while in most States churches are further recognized and given exemption from taxation, because of their conserv- ing and helpful influence over the people, and the absence of any objects of pecuniary advantage to their members. Although numerous cases are found in the courts relating to the rights, privileges and responsibilities of these eccle- siastical organizations and their members, we shall not refer to them, except incidentally and by way of illustration, for ecclesiastical law is a subject worthy of its own individual treatises, and learned authors have considered its theories and principles with great research and ability. 1 See ante, § 2. 11 ^ 10 INTRODOCTORT. § 10. The English Friendly Societies. — In the law which now regulates Friendly Societies in Great Britain,^ they are defined as " societies established to provide by voluntary subscriptions of the members thereof, with or without the aid of donations, for the relief or maintenance of the members, their husbands, wives, children, fathers, mothers, brothers or sisters, nephews or nieces, or wards being orphans, during sickness or other infirmity, whether bodily or mental, in old age, or in widowhood, or for the relief or maintenance of the orphan children of members during minority ; for insuring money to be paid on the birth of a member's child, or on the death of a member, or for the funeral expenses of the husband, wife, or child of a member, or of the widow of a deceased member, or as respects persons of the Jewish persuasion, for the payment of a sum of money during the period of confined mourning ; for the relief or maintenance of the members when on travel in search of employment, or when in distressed circum- stances, or in case of shipwreck, or loss or damage of or to boats or nets ; for the endowment of members or nominees of members at any age ; for the insurance against fire to any amount not exceeding £15 of the tools or implements of the trade or calling of the members." They are limited in their contracts for assurance of annuities to £50, and for insurance of a gross sum to £200. These organizations have been more briefly defined to be *' the mutual assurance societies of the poorer classes, by which they seek to aid each other in the emergencies arising from sickness and death and other causes of distress." The friendly societies of the present time are in one sense the successors of the ancient guilds and some of them are very old, tracing their foundation back as early as 1634. They are supposed by some to have their origin in the burial clubs of early English histoYy, when the desire of the poor » 38 & 39 Vic, c. 60, amended 39 & 40 Vic, c. 32. 12 INTKODDCTOBT. § 10 to have respectable burial led to the formation of associations^ whereby through the co-operation and periodical contribu- tions of many, a fund was established for the purpose of burying their deceased members. The organization of these societies is more complex than that of any of the associations which they have succeeded and they proceed on a different principle, though the modern may be the natural results of the improvements of each successive generation over the methods of that preceding. In all there is the common pro- vision for a contingent^ event by a joint contribution ; but the friendly society has attempted "to define with precision what is the risk against which it intends to provide, and what should be the contributions of the members to meet that risk." In the eighteenth century these societies were numerous, and in 1793 their existence was recognized by what is known as Sir George Rose's Act, by which they were styled "societies of good fellowship " and given encouragement by special privileges. The benefits offered by this statute were eagerly received and in the county of Middlesex alone nearly a thousand societies were enrolled in a few years after the passage of this act. This prosperity was succeeded by depression and failure of many societies and general mistrust. For the purpose of encouraging greater confidence in these organizations and affording "further facilities and additional security to persons who may be willing to unite in appropriating small sums from time to time to a common fund," the act of 1819 ^ was passed. By this statute a friendly society was defined as "an institution, whereby it is intended to provide, by contribu- tion, on the principle of mutual insurance, for the mainte- nance or assistance of the contributors thereto, their wives or children, in sickness, infancy, advanced age, widowhood, or any other natural state or contingency, whereof the 1 69 Geo. m., c. 128. 13 § 10 INTEODUCTOEY. occurrence is susceptible of calculation by way of average." The act of 1829 ^ was a great improvement over the one it displaced and by it the law relating to these organizations was entirely reconstructed. The various acts of 1834,^ and 1846® were still further improvements, and by the latter the present office of " Registrar of Friendly Societies " was established. In 1850 * and 1855 * the law was again changed and this was succeeded by the present law passed in 1875,' and amended in 1876.' It will be seen, therefore, that the English Friendly So- cieties have long been recognized by the government as organizations beneficial to society and deserving the support and encouragement of the community. They are now under a careful supervision, as much so as the more pretentious life insurance companies, and they are required to make regular returns to the chief registrar; special provisions are also made by the laws for the restraining power of the ■courts and the winding up of the societies when insolvent.' 1 10 Geo. rv., e. 56. 2 4 & 5 Wm. IV., c. 40. « 9 & 10 Vic, c. 27. * 13 & 14 Vic, c. 116. » 18 & 19 Vic, c. 63. » 38 & 39 Vic, c 60. ' 39 & 40 Vic, c. 32. ' For most of these facts we are indebted to a very full and carefully prepared article in the last edition of the Encyclopajdia Britannica by B. W. Brabrook. From that essay it seems that these societies are diylded by the registrar into thirteen classes, ranging from the affiliated societies, -or "orders," to cattle msurance societies. There are also "general societies," of which 8 in London have 60,000 members; county societies with 30,000 members; local town societies; "collecting societies," of which 329 have over 680,000 members and £203,777 of funds; " annnlty societies;" female societies; workingmen's clubs, etc. In the period between 1793 and 1855 it is stated that 26,034 societies registered under the various acto. In 1876, 11,282 furnished returns, though 26,087 were presumed to be In existence, and these had 3,404,187 members and £9,336,946 funds. Twenty-two returned over 10,000 members each and aiine over 30,000 members. One society, the " Boyal Liver Friendly So- 14 INTRODUCTORY. § H § 11. The American Beneficiary Orders. — The Amer- ican benefit societies or orders, resemble most the English friendly societies, although they have many of the charac- teristic features of the great secret orders like the Freema- sons and Odd-fellows. Most of them have a secret organi- zation and ritual, with mystic signs and pass-words, are oath-bound and have grades or degrees of honor. The local lodges are generally under the supervision of grand lodges, composed of delegates from the local bodies j and these in turn acknowledge the supremacy of a supreme lodge, made up of representatives from the grand lodges. The benefits paid are of two kinds, those to sick members for which the local lodges are responsible, and a specific sum to be paid on the decease of a member to his benefi- ciary, designated as such in ac cordance with the rules of the order. This death benefit is paid by the highest body in the order, which is usually incorporated, and, in evidence of the right of the member to have this benefit paid, a cer- tificate is issued to him by this supreme or grand lodge. The amount thus paid in each case ranges from> $500 to $5,000, and the fund from which it is disbursed is collected by assessments, generally of a definite sum, from one to five dollars, called monthly, oroffcener as occasion requires, or as needed when a death occurs. The local lodges act in collecting these assessments as the agents of the grand or supreme lodge. The local lodges also are supported by monthly or quar- terly calls, or dues, which are levied and collected by the lodge direct and used as prescribed by the by-laws of each Ciely " had 682,371 members and £453,418 of funds; another, the " Hearts of Oak," has £179,995 of funds. Besides the registered are a large num- ber of unregistered societies of a kindred nature. Of the first class of registered societies, the Manchester Union of Odd-fellows had In 1878, 456 districts, 4,121 lodges, 626,802 members and £4,325,000 funds and the Order of Foresters had at the same time 287 districts, 4,414 courts, 521,416 members and £2,497,000 of funds. 15 § 11 INTKODUCTOET. body. The sick benefits are paid out of this lodge fund. These local lodges enroll the new members, ,or receive them by a secret ceremonial, but before initiation the applicants must pass a medical examination, the report of which must be usually approved by a supervising medical authority, after which they are initiated in due form and become full fledged members.^ ' The oldest of the leading beneflciary orders, with the life insorance feature, in the United States is the Ancient O rder of United Workmen. It was organized in Pennsylvania in 1868 and now has lodges in nearly every State and its total membership is about 204,000. It pays a benefit of $2,000, and consequently has risks outstanding of $408,000,000. Since its organization it has paid to the beneficiaries of deceased members upwards of $20,000,000. The next largest order is the Knights of Honor, organized soon after the A. O. U. W., which now has a membership of 125,000 and since It began business has paid out to its beneficiaries $23,750,000 on 12,077 deaths. The following is an approximately correct. list of the leading benefic- iary orders In the United States and their aggregate membership, which is- compiled partly from official sources and partly from data in the frater- nal press : Ancient Order United Workmen .... 204,000 members. Knights of Honor 125,000 " Koyal Arcanum 85,000 " American Legion of Honor 65,000 " Knights and Ladies of Honor 40,000 " Order Chosen Friends 33,000 " Knights of Pythias, Endowment Rank . . . 17,000 " Knights of Maccabees 18,000 " Equitable Aid Union 17,000 " Empire Order MutualAid 8,000 " Eoyal Templars of Temperance 22,000 " United Order Am. Mechanics 40,000 " Order United Friends 12,000 " Select Knights A. 0. U. W 15*000 " Order Golden Cross g'oOO " Knights Golden Rule 9*000 " Home Circle s'ooo " Knights Columbia 2*000 " Independent Foresters 6*000 " Legion of Honor \ o'oOO " National Union [ 6*000 " Catholic Knights of America ..,','. 2o',000 " Other societies unnamed 60 000 " Total membership 813 ooo " If we allow $2,000 as the average benefit paid in these orders (and some pay as high as $5,000) we have the enormous sum of $l,626,000,00a 16 INTKODDCTORT. § 12 § 12. The Secret Fraternities, — Closely allied to the beneficiary, or mutual aid life insurance organizations, are the secret ritualistic societies and charitable fraternities, ■whose characteristic features are good-fellowship, social en- joyment and benevolence. The Freemasons, Odd-fellows and Knights of Pythias are examples. These numerous societies are secret in their organization and work, use a ritual and have initiatory ceremonies and their members are pledged to secrecy. They are organized on the plan of local assemblies or lodges under the government and con- trol of grand or supreme lodges. Some, like the Masons, make no promise of financial aid to members, but are char- itable only, donating when necessity requires. Others, such as the Odd-fellows, expressly agree to pay stated amounts to their members in sickness or disability and at •death a certain sum for funeral expenses, and also to look after the widow and orphan. These societies have no life insurance feature.^ as the aggregate of beneflciaiy life insurance now carried in the United States and Canada. For the facts here and subsequently stated relating to these beneficiary orders, we are indebted largely to the fraternal press of the United States, but have obtained information from the pub- lished reports and documents of the orders and private sources. • The Independent Order of. Odd-fellows was the first fraternal so- ciety in America to guaranty to its members a certain amount of money in event of sickness and for a funeral benefit. It was founded in this -country in 1819, and now has about 8,600 lodges and 630,000 members, And during its existence has disbursed to its beneficiaries upwards of fifty million dollars. The largest secret fraternal society is the Masonic •Order, which now has a membership in this country of over 600,000 mem- bers, and has expended millions of dollars in unostentatious charity The Knights of Pythias, which was originated within the last half cen- 1niry, has a membership of probably 176,000. On principle, a distinction should be made between the mutual aid or t>eneficiary orders proper, having a life insurance feature, and the purely ■charitable and fraternal societies, whose donations are more strictly charities, but this caijnot always be done. In nearly every large city, there are local orders not known away from the vicinity, and throughout the United States are numerous Hebrew, Scottish, English and other or- ganizations deriving their membership from some one nationality, creed 2 17 § 14 INTRODUCTORY. § 13. Allied Organizations. — In connection with the Masonic, Pythian and Odd-fellows' orders are in many States associations formed for mutual life insurance, whose membership is drawn exclusively from the societies in aid of which they are organized. These organizations are dis- tinct and separate from the orders, are strict business com- panies and are life insurance companies, operating on the assessment plan instead of on the principles underlying the scientific theory of life insurance. There are also in this country a large number of regular corporations, formed for the conduct of the business of life insurance on the plan of the benefit societies, — the collection of frequent periodical assessments as required to meet death losses. The business of these companies is regular life in- surance conducted upon a new theory, for, except in this respect, they do not differ from the regular life insurance companies with which all are familiar. § 14. Characteristics in Common. — As we have pro- gressed with the consideration of these social, benevolent mutual aid societies as well as other organizations for the mutual assistance of their members, in their field of work, we have found that, while all fraternal associations have the characteristic features of the Tegular clubs which have often figured in the courts, many have the additional fea- ture of agreeing to pay a certain sum on the death of a member to his designated beneficiaries ; and these have the dual nature of which we spoke at first,^ and are business or religious sect. Among these, omitting the Tarions branches or de- grees of the Masonic and Odd-fellows' orders and those mentioned In the last note, are the Ancient Order of Druids, O. D. H. S., Sons of Her- mann, I. O. T. B. (Ti-ue League), Order of the Iron Hall, Seven Wise Men, Good Ladies, Plattdeutsche, I. O. Bnal B'rith, Knights of Father Mathew, Ancient Order Hibernians, Bohemian Slavonian Benevolent As- sociation, Order of Tonti, Improved Order of Red Men, A. and I. Order of Malta, Knights of the Golden Eagle and Order of Sparta. ' Ante, § 1. 18 INTRODUCTOKT. § 16 companies as well as social fraternities. This business we shall see ^ is, legally speaking, life insurance in form and substance, although in a philosophical sense it is not tech- nical and scientific life insurance. In discussing the ques- tions that have arisen and are likely to arise in the conduct of these societies, it wiU be necessary to consider the law of life insurance as laid down by the courts of this and other countries. § 15. Definitions of Life Insurance. — The definitions of life insurance are numerous, but they do not differ ex- cept in the forms of expression. Without attempting to coin a new one we will refer to some given by the English courts and then state that now most approved of in the United States. § 16. The English Definitions. — In the great case of Dalby v. India and London Life Assurance Company,* in explaining the difference between the contract of life assur- ance and that of fire or marine insurance, holding that the former is not, like the latter, a contract of indemnity. Baron Parke said; " The contract commonly called life assurance, when properly considered, is a mere contract to pay a certain sum of money on the death of a person, in consideration of the due payment of a certain annuity for his life, — the amount of the annuity being calculated, in the first instance, according to the probable duration of the life; and, when once fixed, it is constant and invariable. The stipulated amount of annuity is to be uniformly paid on one side, and the sum to be paid in the event of death is always (except when bonuses have been given by pros- perous offices) the same, on the other. This species of insurance in no way resembles a contract of indemnity." 1 Post, § 51. > 15 C. B. 865; 3 a L. B. 61; 24 L. J. C. P. 8; 18 Jar. (Bz. Ch.) 1021. 19 § 17 INTEODUCTOET. Bunyon, the English insurance writer, after quoting the definition of Chief Justice Tindal,^ that it is a contract in which a sum of money is paid as a premium in consideration of the insurers incuring the risk of paying a larger sum upon a given contingency, adds: " The contract of life insurance may be further defined to be that in which one party agrees to pay a given sum, upon the happening of a particular event, contingent upon the duration of human life, in consideration of the immediate payment of a smaller sum, or certain equivalent periodical payments by an- other." ^ § 17. American Deflnition. — The American definition most generally approved is that of Justice Gray, of the Supreme Court of Massachusetts, as follows :' — " 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 contin- uance 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 ma- rine 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 assui-ed, nor the modes of estimating or securing the payment of the sum to be paid by the insurer, affect the questlou 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 in- surance upon the happening of injury to the subject by a contingency contemplated in the contract." * » • Patterson v. Powell, 9 Bing. 320. * * Bunyon on Ins. 1. » Commonwealth v. Wetherbee, 105 Mass. 1*9. * See post, § 51; New Tork L. Ins. Co. v. Statham, 93 U. S. 24 20 INTRODUCTORT. § 18 § 18. Various Classes of Life Insurance. — There are two principal classes of life insurance, each consisting of several varieties. The first class are those in which the sum insured is certain to become payable, provided only the insurance is duly kept in force ; the second are those which are of a temporary or contingent character, so that the sum insured may or may not become payable, according to cir- cumstances. To the first class belong the great bulk of the transactions of life insurance companies, namely: — (o.) Whole TeiTfi Assurances on Single Lives. — These are contracts to simply pay a certain sum, with or without dividends, on the death of the person named in the policy whenever that may occur. Usually the premium, or con- sideration for the policy is an annual sum payable during the whole continuance of the policy. It may, however, be arranged differently, as by a single payment at the begin- ning of the transaction ; or a limited number of contributions, each larger than the annual premium for the whole of life ; or by a modified rate during a limited period and thereafter a correspondingly higher rate. (6. ) Endoioment Assurances. — In these the sum insured is payable to the assured if he should survive a certain pe- riod, or attain a specified age, or to his representatives at his death, if that should occur before such period has expired. (c. ) Insurances on Joint Lives. — Here two or more lives are included in the policy and the sum insured is pay- able when either or any one of them dies. (d. ) Longest Life Assurances or Insurance on Last Sur- vivor. — These cover two or more lives, but mature on the death of the last survivor instead of upon the death of any one of the parties. There are two varieties of the second class named above : (a.) Temporary or Short Penod Insurances. — These are affected for short periods to cover special contingencies, 21 § 19 INTKODOCTOKT. the sum insured becoming payable only if death should occur during the time specified in the policy, Just as policies of fire insurance. These may be upon one or more lires, payable on the end of one, or of both, or if one should fail before the other as in the next rariety. (6.) Survivorship Insurances, or on One Life Against Another. — In these the sum insured is payable at the death of A. if that should happen in the lifetime of B., but not otherwise. Should B. die before A. the transaction fails.* § 19. Assurance and Insurance. — The words "insur- ance" and '-assurance" are synonymous ^ and are used indiscriminately. One of the earliest English writers,' how- ever, says: ' ^ The terms insurance a,nd assurance have been used indiscriminately for contracts relative to life, fire and shipping. As custom has rather more frequently employed the latter term for those relative to life, I have in this vol- ume entirely restricted the word assurance to that sense. If this distinction be admitted, assurance will signify a con- tract dependent on the duration of life, which must either happen or fail, and insurance will mean a contract relating to any other uncertain event, which may partly happen or partly fail. Thus, in adjusting the price for insurance on houses and ships, regard is always had to the chance of sal- vage arising from partial destruction." Other writers have sought to establish fanciful distinctions, as that a person, insures his life, his house or his ships, and the company assures to him in each of these cases a sum of money paya- ble upon their injury or destruction. Another is that assur- ance represents the principle, and insurance the practice. Were we to discriminate we would say that, in life insur- ance contracts, if the policy is payable to the person whose > G. M. Low, Actuary, in Encyclopaedia Britannica, art. ' ' Insurance — Life." 2 Bonvier L. Die. * Babbage on Assurance of Lives (la26.) 22 INTRODUCTORY. § 20 life is covered, or his legal representatives, he is the insured, while if it is payable to some one else, such person is the 27. Legal Statas of Voluntary Associations Uncertain. 28. Members of Volxintary Associations sometimes not Fartneis. 29. When Societies are Partnerships. 30. Cases where no Partnership was held to Exist. 31. The Case of Ash v. Gnie. 32. Cases where Associations were held to be Partnerships. 33. The Declaration of CoUyer on Partnership. 34. The Principle stated by Another "Writer. 86. A General Bule. 36. Liability and Status of Members : Dissolution. 87. The Effect of Articles of Association. 88. Powers of Voluntary Associations and of the Members. 89. Jurisdiction of Equity. 40. Voluntary Association may be Estopped from showing its Trae Nature. 41. Defective Organization of Corporation. 42. Benefit Societies Incorporated nnder Special Acts. 43. General Incorporation Laws. 44. Benefit Societies as Charities. 46. English Friendly Societies not Charities, nor Assurance Cos^ps- nies. 46. Incorporating under General Laws. 47. Corporate Powers. 48. The Charter the source of Corporate Powers. 49. The Modem Idea of Corporations. 60. Exemption of Benevolent Societies from Insurance Laws. 61. Status of Benefit Societies considered by the Courts. 52. Conclusion: Benefit Societies are Insurance Organizations. 63. Exempting Statutes. 64. Liberality of Exemption in some States. 65. Limitations on Business in Certain States. 56. Life Insurance Business as now conducted in the United States and Canada, 57. Dissolution of Voluntary Associations. 68. Dissolution of Incorporated Societies. 59. "When Equity will Interfere. 60. Forfeiture of Corporate Franchises. 30 ORGANIZATION, POWERS AND LIABILITIES. § 27 § 26. Benefit Societies may be Yoluntary Associations or Corporations. — Benefit societies, like other associations of persons for agreed and lawful purposes, may be simply yoluntary associations, or they may become incorporated, either by special act of the legislature in that behalf, or by compliance with the provisions of the general laws author- izing the incorporation of such organizations. § 27. Ijegal Status of Voluntary Associations Uncer- tain. — The legal s Abbott'8 note to Ebbinghausen v. Worth Club, * Abb. N. C. 300. 31 ■§ 29 ORGANIZATION, POWERS AND LIABILITIES. the liability sought to be enforced and the varying facts of the different cases than upon mere abstract doctrines. Under certain conditions the members of a voluntary asso- •ciation may be considered partners, while in a different forum and under other circumstances the same organization will be deemed something else. § 28. Members of Voluntary Associations Sometimes not Partners. — There are many cases where it has been held that if a number of persons associate themselves to- gether for purposes of charity, benevolence, pleasure, or ■any other lawful object not trade, or business, or profits, they are generally not to be regarded as among themselves, .as partners.^ § 29. When Societies are Partnerships. — But in the settlement of disputes among the members, in the division •of property, in determining the liabilities of members to creditors, in winding up the societies, and generally in all •equitable proceedings, the courts will treat the members as ordinary partners, and the associations as partnerships, yet as far as possible giving effect to the articles of association •of the members.^ These differences wiU more fully appear 1 Thomas v. EUmaker, 1 Pars. Sel. Cases, 98 ; White v. Brownell, 8 Abb. Pr. (N. 8.) 325; 4 Abb. Pr. (jf. s.) 162; McMahon v. Rauhr, 47 N. Y. 67; Lafond et al. v. Deems, 81 N. Y. 514; Leech b. Harris, 2 Brewst. ^71; TyreU v. Washburn, 6 Allen, 466; Smith v. Virgin, 33 Me. 148; and as to members of mutual insurance companies, Krugh v. Lycoming F. Ins Co., 77 Pa. St. 15. * Gorman v. Russell, 14 Cal. 537; Protchett v. Schaefer et al., 11 Phila. 166; BuUard u. Kinney, 10 Cal. 60; Butterfleld v. Beardsley, 28 Mich. 412; Beaumont B.Meredith, 3 V. &B. 180; Pearce r. Piper, 17 VeS. 15; Carlton v. Southern Mut. Ins. Co., 72 Ga. 371; Eeeve d. Parkins, 2 Jac. & W. 390; Ellison v. Reynolds, 2 Jac. & W. 611; Cockbum v. Thompson, 16 Vt. 321; Wallworth v. Holt, 4 Myl. & Cr. 619; Adkyns ». Hunt, 14 N. H. 205; Womersley v. Merrit, L. R. 4 Eq. Cas. 695; Rich- ardson V. Hastings, 7 Beav. 323; Whitman v. Porter, 107 Mass. 622; Taft t). Ward, 106 Mass. 518; Harper v.. Raymond, 3 Bos. 29; Mannc. 32 ORGANIZATION, POWERS AND LIABILITIES. § 30 from the examination of some of the authorities bearing upon the subject. § 30. Cases where no Partnership was held to Exist. — The Court of Appeals of New York, in passing upon a case ■where several members of an unincorporated lodge of a benevolent society, called " The Independent Order of Eechabites," brought suit against the others, alleging mis- management, and seeking to dissolve the lodge and wind up its affairs and distribute its property among the members, 5aid: ^ "Associations of this description are not usually partnerships. There is no power to compel payment of •dues, and the right of the member ceases when he fails to meet his annual subscription. This, certainly, is not a part- nership, and the rights of the co-partners as such are not rfully recognized. The purpose is not business, trade or profit, but the benefit and protection of its members, as provided for in its constitution and by-laws. In accord- ance with well established rules no partnership exists under such circumstances." In Caldicott v. Griffiths,^ the court said: " The rules do not create a partnership between the members of the society. The question is, whether this is -a scheme where certain persons enter into a partnership or ■g-Mosz-partnership, or whether they are like members to a hospital or club. The solution of the question is not to be found by examining the cases with reference to the lia- bility of committeemen or shareholders, but by looking at the rules of the society to see what liabilities they create." In Flemyng v. Hector,' an action brought by a trades- Butler, 2 Barb. Ch. 362; Townsend v. Goewey, 19 Wend. 424; Bur- :gan V. Lyell, 2 Mich. 102 ; Claggett v. Kilbourne, 1 Black, 346 ; Brotm v. Cartls, 5 Mason, 421 ; Brown v Gilman, 4 Wheat. 255 ; Brown v. Dale, L. E. 9 Ch. D. 78; AdamB' Eq. 247-239-240; Story Eq. Jur., §§ 1243, 1255, 1256. 1 Lafond et al. v. Deems et al., 81 N. Y. 514. « 22 Eng. L. &E. 529; 8 Ex. 898; 1 C. L. R. 715; 23 L. J. Ex. 54. » 2M. & W. 171. 8 33 . § 31 ORGANIZATION. POWERS AND LIABILITIES. man against one of the members of a club, the court saidr " This is an action brought against the defendant on a con- tract, and the plaintiff must prove that the defendant, either by himself or his agent, has entered into that con- tract. That should always be borne in mind in cases of this class, for on most questions of this kind the real ground of liability is"very apt to be lost sight of. As the defendant did not enter into the contract personally, it is quite clear that the plaintiff cannot recover against the defendant, unless he shows that the person making the contract was the agent of the defendant, and by him authorized to enter into the contract on his behalf. * * * It is said in this case that the order was given by the committee, and that they were the agents of the members generally; but the question is, whether there was any sufficient evidence to go to the jury that they were authorized by the defendants to enter into and make these particular contracts in their behalf. » » * These cases resolve themselves into questions of construction as to the meaning of the original rules of the club." In this case the members were held, under the rules, not to be liable for debts contracted by the managing committee. § 31. The Case of Ash v. Guie. — In Ash v. Guie,^ a case where creditors sought to charge the members of a Masonic lodge for debts incurred in erecting a building, the court said: "A benevolent and social so- society has rarely, if ever, been considered a partnership. In Lloyd v. Loaring^ the point was not made, but Lord Elden thought the bill would lie on the ground of joint ownership of the personal property in the members of a Masonic lodge ; there was no intimation that they were part- ners. Where a society of Odd-fellows, an association of 1 97 Pa. St. 493; 39 Am. Rep. 818. * 6 Yes. 773. 34 ORGANIZATION, POWERS AND LIABILITIES. § 31 persons for purposes of mutual benevolence, erected a building, which was afterwards sold at sheriff's sale in sat- isfaction of mechanics' liens, in distribution of the proceeds, it was said that, as respects third persons, the members were partners, and that lien creditors, who were not mem- bers, were entitled to preference as against the liens of members.* Had the members been called joint tenants of the real estate the same principle in the distribtition would have applied. * • * ^ mutual beneficial society par- takes more of the character of a club than a trading associa- tion. Every partner is agent for the partnership, and as concerns himself he is a principal, and he may bind the other by contract, though it be against an agreement between himself and his partners. A joint tenant has not the same power, by virtue of the relation, to bind his co-tenant. Thus one of several co-adventurers in a mine has not, ai such, any authority to pledge the credit of the general body for the purposes of the concern. And the fact of his having the general management of the mine makes no difference, in the absence of evidence from which an implied authority for that purpose can be inferred.* " Here there is no evidence to warrant an inference that when a person joined the lodge he bound himself as a part- ner in the business of purchasing real estate and erecting^ buildings, or as a partner so that the other members could borrow money on his credit. The proof fails to show that the officers, or committee, or any number of the members,, had a right to contract debts for the building of a temple j which would be valid against every member from the mere' fact that he was a member of the lodge. But those who- engaged in the enterprise are liable for the debts they con- tracted, and all are included in such liability who assentedl to the undertaking or subsequently ratified it. Those who^ 1 Babb V. Reed, SRawle, 151; 28 Am. Dec. 650. ' Hicketts v. Bennett, 4 M. G. & S. 686; 66 E. C. L. 35 ■§ 32 ORGANIZATION, POWERS AND LIABILITIES. participated in the erection of the building, by voting for and advising it, are bound the same as the committee who had it in charge, and so with reference to borrowing money. A member who subsequently approved the erection or bor- rowing could be held on the ground of ratification of the agent's acts. We are of the opinion that all the members so assenting were liable as partners in their relation to third persons in the same manner as individuals associated for the purpose of carrying on a trade." § 32. Cases where Associations were Held to be Part- nerships. — In Park v. Spaulding,' also an action brought by a creditor to charge as individuals certain members of a voluntary association called " The Worth Club," the court said: " Its members remained at all times in that nebulous and inchoate condition in which an aggregation of individ- uals, assuming a name under which they incur liability, are held personally liable for the benefit of creditors by the application of common-law principles. * * * Where such a body of gentlemen join themselves together 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 responsi- bility by withdrawal from the body, it is his duty to notify the creditors of such withdrawal." The Supreme Court of New York,^ lays down this rule: •" Personal responsibility to the full extent of the indebt- ■edness to third parties can only be avoided by persons con- stituting any association where they become a corporation or 5'Masi-corporation. Companies or societies, which are not sanctioned expressly by the legislature, pursuant to some general or special law, are nothing more than ordinary partnerships and the laws respecting them are the same." i 10 Hun, 128. ^ Wells V. Gates, 18 Barb. 554. 36 ORGANIZATION, POWERS AND LIABILITIES. § 34 § 33. The Declaration of Collyer on Partnership. — The following strong declaration is from Collyer on Part- nership: * " Societies and clubs, the object of which is not to share profits, are not partnerships in any sense. * * • It is a mere abuse of words to call such associations part- nerships; and if liabilities are to be fastened on any of their members it must be by reason of the acts of those members themselves, or by reason of the acts of their agents ; and the agency must be made out by him who relies on it, for none is implied by the mere act of association." § 34. The Principle Stated by Another Writer. — A careful writer thus states the result of his investigations:* " The true principle is, and upon this view the apparent discordance 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 is involved, and wiU enforce their articles of agreement (nothing 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 associa- tion has the shield of incorporation. Thus, if the contro- versy is between members of the association, and relates to such objects as the mode 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 analogy to the law of corpo- rations, so far as the compact between the members com- templates. But if the question is between the association, or its members, and third parties, and relates to such points as in what name the associati6n may sue, whether members are individually liable to the creditors for debts, etc., a • Wood's edition, 1878, §29. * Abbott Digest of Corp., tit., Associations. 37 § 36 ORGANIZATION, POWEUS AND LIABILITIES. mere compact of association cannot vary the rights of strangers to it, but the associates must submit to the general rules of law applicable to the questions raised." § 35. A General Bule. — The general rule seems to be that the articles of association, or rules, or if there are no such articles of association or rules, then the customs and usages of the members, are to be looked to in order to determine whether the associated individuals are a partner- ship or not, and to adjust the rights of these individuals among themselves. The questions involved are of con- struction and of fact. So far as creditors are concerned and outsiders generally their rights are governed by the law of agency, and in each case it will be necessary to ask whether the agents of the association were authorized to contract the obligation, and if so, whether it was contracted in behalf of all the members of the association, or some of them only. Necessarily, the facts in each particular case will decide whether any liability attaches and also its extent.^ § 36. Iiiabilit,v and Status of Members : Dissolution. — If one or more members order work done or supplies fur- nished he or they are personally liable unless credit was 1 Ash V. Guie, 97 Pa. St. 493; 'Flemyng v. Hector, 2 M. & W. 171; Cald- Icott V. Griffiths, 22 Eng. L. & E. 529; Cutler v. Thomas, 25 Vt. 73; Hill V. Beach, 12 N. J. Eq. 31; Carlew v. Drury, 1 Ves. & B. 157; Keasly v. Codd, 2 Car. & P. 408; Harrison v. Heathorne, 6 M. & G. 81; Pipe V. Bateman, 1 la. 369; Babb v. Reed, 5 Rawle, 151; Carlton v. Southern M. Ins. Co., 72 Ga. 371; Waller v. Thomas, 42 How. Pr. 337; Foley v. Tovey, 54 Pa. St. 190; Payne v. Snow, 12 Cush. 443; Gorman v. Russell, 14 Cal. 533; Hess v. Wertz, 4 Serg. & R. 356; Pearce r. Piper, 17 Ves. 15; Fuller ». Rowe, 57 N. Y. 23; Protchett v. Schaefer,. 11 Phila. 166; Leech b. Harris, 2 Brewst. 571; Koehler v. Brown, 2 Daly, 78; Richmond v. Judy, 6 Mo. App. 465; Ferris v. Thaw, 5 Mo. App. 279; s. c. 72 Mo. 450; DeVoss v. Gray, 22 Ohio St'. 159; Heath v. Goslin, 80 Mo. 310; Sproat v. Porter, 9 Mass. 300. 38 OEGANIZATION, POWERS AND LIABILITIES. § 36 given to the association.* The liability of members attaches when they sign the articles of association,* although such signing is not a prerequisite of membership,* and continues until notice of withdrawal is given ; * and the law of the place where the association was formed and did business determines such liability.* If the relation of partnership «xists one member cannot sue the others at law ; * nor can the majority bind the minority except by consent, or by acting under the articles of association.^ If the court is satisfied that the association is a bubble and cannot answer the purpose of its creation it will wind it up ; ' and, if nec- essary, restrain operations by injunction.* Where an " un- authorized corporation" or "private society" was organized for the purpose of providing a common fund and erecting tombs for its members, and the latter by its rules are to re- ceive, in return for dues and fees, relief and medical treatment during illness, burial at death, and certain specified assistance to their widows and orphans wheu left in necessitous cir- cumstances ; it was held that the death of any member does not dissolve the association ; that the interest in the assets of 1 WeUa B. Turner, 16 Md. 133; Heath v. Goslin, 80 Mo. 310; Lewis v. Tilton, 64 la. 220; s. e. 62 Am. Rep. 436; Hatchinson v, Wheeler, 8 Allen, 677. 2 Dennis v. Kennedy, 19 Barb. 617. ' United Hebrew, etc.,». Benshimol, 130 Mass. 325. ♦ Tenney v. N. E. Protective Union, 37 Vt. 64; Park «. Spauldlng, 10 Hun, 128. ' Cutler V. Thomas, 25 Yt. 73; Knights of Honor v. Nairn, 26 N. W. Rep. 826 (Mich.). But see Taft v. Ward, 106 Mass. 518, where it is held that members of a joint stock company imder the laws of New York are liable to third parties as partners. « Bullard v. Kinney, 10 Cal. 60; McMahon v. Ranhr, 47 N. Y. 67; Holmes v. Higgins, 1 B. & C. 74. ' Livingston v. Lynch, 4 Johns. Ch. 694; Torrey v. Baker, 1 Allen, 120. « Buckley v. Cater, stated 17 Ves. 15; Pearce v. Piper, 17 Ves. 1 ; Ellison e. Bignold, 2 Jac. & Walk. 511. ' Reeve v. Parkins, 2 Jac. & Walk. 390; Gorman v. Russell, 14 Cal. £38. 39 § 38 ORGANIZATION, POWEKS AND LIABILITIES. a member of the association does not pass to his heirs bat lapses in favor of his associates.^ § 37. The Effect of Articles of Association. — We shall discuss this question of status of unincorporated voluntary associations further when we come to consider the rights and liabilities of members to each other. It is always true,, however, as said in Protchett v. Schaefer et al.,^ that " the articles of association are doubtless to be considered in the light of an agreement, between the members, extending or limiting any general obligation, which binds them to each other as members of the partnership." "The members have established a law to themselves." * § 38. Powers of "Voluntary Associations and of the Members. — An unincorporated voluntary association may do any legal act within the scope of its articles of association or constitution and by-laws, which articles, constitution and by-laws form the contract of the members and fix the pow- ers of their agents, the officers. The principles and rules of partnership and agency determine the right and liabilities of these association^ and their members and the questions which arise concerning them are to be adjusted accordingly.* If the members knowingly acquiesce in or consent to a departure from the requirements of the laws of the society evidence of this fact is admissible to determine the liability.^ 1 Sociedad Union Espanola v. Docurro, 1 McGloin (La.), 218. See also Mason v. Atlanta Kre Co., 70 Ga. 604; 48 Am. Kep. 685. 2 11 PhUa. 166. s Leech v. Harris, 2 Brewst. 571; Tyrrell v. Washburn, 6 Allen, 466; Hyde v. Woods, 2 Sawyer, 655, affd. 94 U. S. 523. ' BuUard v. Kinney, 10 Cal. 60; Gorman v. Russell, 14 Cal. 537; White V. Brownell, 3 Abb. Pr. (n. s.) 318; Leech v. Han-is, 2 Brewst. 571; EidgleyB. Dobson, 3 Watts & S. 118; Wells v. Gates, 18 Barb. 554; Protchett v. Schaefer et al., 11 Phila. 166; Robinson v. Robinson, 10 Me. 240; Dow v. Moore, 47 N. H. 419; Piemyng v. Hector, 2 M. & W. 171. * Henr'' r. Jackson, 37 Vt. 431; Dow v. Moore, 47 N. H. 419. 40 ORGANIZATION, POWERS AND LIABILITIES. § 38^ The association cannot change the purposes for which ii was organized, as specified in its articles of association, without the consent of all the members ; * and although a minority, present at a meeting where money is disposed of for a purpose different from that prescribed in the articles of association, are bound unless they then and there dissent, the vote does not bind those not present.* A part of the members cannot bind the others without their consent before the act which it is claimed binds them is done, or they, with knowledge of the facts, ratify and adopt it; although, if the act is clearly in furtherance ot the object for which the association is organized, all wiU be presumptively bound by it.* The Supreme Court of Michigan has held * that a Masonie lodge which was in existence before the organization 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, was not merged in the corporation. The court said: "There is nothing but unanimous consent which can bind any member of an unincorporated company by any action not within the termfr of the association. In joint enterprises, matters within the proposed scheme are usually left to be determined by such agencies or such votes as are agreed upon. Outside of the- agreement, no one can be boiind without his assent." * A. 1 Morton v. Smith, 5 Bash, 467; ZabrisMe v. Hackensack, etc., 18 N. J. Eq. 178; Mar6ton v. Dargin, 51N. H. 347; Hochrelter'8 Appeal, 93 Pa. St 479; Torreyu. Baker, 1 AUen 120. » Abels V. McKeen, 16 N. J. Eq. 462; Ray v. PoweU, 134 Mass. 22;: Keea v. Johnson, 9 N. J. Eq. 401. ' Sizer «. Daniels et al., 66 Barb. 426; Bichmond v. Judy, 6 Mo. App. 465. * Mason v. Finch, 28 Jlich. 282. -" Mears v. Moulton, 30 Md. 142. 41 ^ 39 ORGANIZATION, POWERS AND LIABILITIES. voluntary association cannot hold real estate as such;^ nor take a bequest.^ The members must exercise good faith towards each other ;^ and they have the right to insist upon n literal carrying out of the provisions of the articles of association in regard to property, though it may not be for the interests of the concern or may be against the will of the majority.* § 39. Jarisdiction of Equity. — The Supreme Court of Verm ont has thus laid down th"e general rule as to the basis upon which a court of equity will act if it entertains jurisdiction over these societies : ^ "If jurisdiction is en- tertained over them (voluntary associations) by a court of chancery, it appears to me that it will become necessary to ■examine their constitution, or by-laws, or articles of associ- a,tion, in order to discover the object for which they were formed; and every member contributing, and every one receiving donations, whether styled officer or not, must be <;onsidered as having regard to the articles of association, whether they are called constitution or by-laws, and must proceed accordingly. And if it is so provided, the major- ity may control the minority by a vote, if such vote is for the purposes of the association and within its provisions. The court of chancery has power to see that such asso- 1 Baptist Assn. v. Hart, 4 Wheat. 1 ; Kain v. Gibboney, 101 TT. S. 362 ; DouthittB. Stinson, 73 Mo. 199; East Haddametc , v. East Haddam, etc., 44 Conn. 259. Biit see Byan ii. Bickford, 140 Mass. 31; Inglis v. Sailors Snug Harbor, 3 Pet. 99; Vidal v. Girard, 2 How. 127; Perin v. Carey, 24 How. 465; Ould v. Washington Foundling Hosp. 95 XT. S. 303; Bussell ■». Allen, 107 U. S. 163. 2 Sherwood v. Am. Bible Soc. 4 Abb. App. Dec. 227; Betts e. Betts, 4 Abb. N. Cas. 317; also authorities last cited. See also Swift's Execu- tors V. Easton Ben. Soc, 73 Pa. St. 362; Blenon's Estate, Brightley, 388. 3 Densmore Oil Co. v. Densmore, 64 Pa. St. 43; Getty c. Devlin, 64 JN. Y. 403; Sizer v. Daniels, 66 Barb. 426. • ManuB. Butler, 2 Barb. Ch.362; Torrey v. Baker, 1 Allen, 120. » Penfleld v. Skinner, 11 Vt. 296, 42 OKGANIZATIOX, POWERS AND LIABILITIES. § 41 ■ciations are faithful trustees in the disposition of the chari- table fund, and will see that it is appropriated to the object designed, and will not suffer it to be direrted, unless with the consent of the contributors. If the object should entirely fail, probably each contributor would be entitled to have his money refunded, and might, or might not, according to the -circumstances of the case, have a remedy therefor, either At law or in chancery." ^ § 40. Voluntary Association may be Estopped from .Showing Its True Nature. — A voluntary association may, by holding itself out as a corporation, be estopped from Baaer «. Sampson Lodge, 102 Ind. 262. * Gorman v. Bussell, 11 Cal. 535. 45 § 44 OKGANIZATION, POWERS AND LIABILITIES. benefit and protection, and prescribe rules for the govern- ment of the society thus organized. They agree that each shall contribute a certain fixed sum to the common treasury, and that this sum shall be applied in a certain event, as in sickness, etc., to the relief of the necessities or wants of the individual members or of their families. This is not a charity any more than an assurance society against fire, or upon life, is a charity. It is simply a fair and reciprocal contract among the members to pay certain amounts, in. certain contingencies, to each other, out of a common fund."^ Masonic lodges have been held to be charities, and as such exempted from taxation,^ though as to this latter point the contrary has been held.' In Alabama* the Supreme Court held that it would take judicial notice that the grand and subordinate lodges of the Masonic society within that State constituted a charitable or eleemosynary corpora^ tion. In a New Hampshire case,' the plaintiff sued to recover his share of the funds of a Masonic lodge whose members had voted its dissolution and division of its property, and the court held that the action could not be maintained, as the society was for charitable purposes and the funds were in the custody of the lodge for charitable uses.° As bearing on this question, whether benefit societies are to be considered charities, we may cite the test laid down by the Supreme Court of Pennsylvania.^ " Private or indi- ^ See Goodman v. Jedidjah Lodge (Md.), 8 Cent. Eep. 278; 9 Atl. Eep> 13; Miner*. Mich. Mut. Ben. Assn. (Mich.), 6 West. Rep. 117; 29 N. W. Kep. 852; dissenting opinion Sperry's Appeal (Pa.), 8 Cent. Eep. 216; 9 Atl. Kep. 478; Bauer v. Sampson Lodge, 102 Ind. 263. » Indianapolis v. Grand Master, 25 Ind. 518 ; Mayor, etc, v. Solomon's Lodge, 63 Ga. 93; State v. Addison, 2 S. C. 499. « Morning Star, etc., v. Hayslip, 23 Ohio St. 144; Bangor v. Masonic Lodge, 73 Maine, 429. * Burdlne v. Grand Lodge, 37 Ala. 478. « Duke V. Fuller, 9 N. H. 536; 32 Am. Dec. 392. • See also Spiller «. Maude, 10 Jur. (n. s.) 1089 ; 13 W. E. 69. ' Burd Orphan Asylum v. School District, etc., 90 Pa. St. 29. 46 ORGANIZATION, POWERS AND LIABILITIES. § 45 vidua! gain, in a pecuniary sense, is not the sole test. ' The true test is to be found in the objects of the institution.' Where these are to advance the interest of a party, of an association, of a private corporation, of a religious denomi- nation, and the like, however beneficial to the public then- growth and success may be, there is a private object to gain ; the institution is not unqualifiedly public. In such Ciise the purpose is wholly private or the private blends with the public? " In the same case on rehearing the court thus construed the word ••^jurely " as used by statutes in refer- ence to benevolent and charitable organizations : "As to the meaning of the word ' purely,' when used in this con- nection, we concur in the construction which was given by the Supreme Court of Ohio in the case of Gerke v. Purcell,^ that, ' when the charity is pubhc, the exclusion of aU idea of private gain or profit is equivalent in effect to the force of ' purely,' as applied to public charity in the constitution.' " * We shall refer to this subject again in discussing the rela- tions of benefit societies to the insurance laws of the sev- eral States.* But it may be here said that " a charitable corporation is not an association of shareholders, like a business corporation or joint stock company; but is merely an agent or trustee for the administration of trust funds, and the beneficiaries of the trust are the donees of the char- ity, and not the members of the corporation."* This defini- tion sheds light on the subject for, tried by this test as well as others, benefit societies are seldom, if ever, " char- ities" in the strict sense of the word. § 45. Ehiglish Friendly Societies not Charities, nor Assurance Companies. — The English friendly societies 1 25 Ohio St. 229. * See note to Henepin «. Brotherhood of Gethemane, in 38 Am. Rep. 29 8 — (same case 27 Minn. 460) and cases there cited. * Post, §§ 50 and 53. ' Morawetz on Corp., § 34. 47 •§ 46 ORGANIZATION, POWERS AND LIABILITIES. -are not regarded by the courts of that country as charitable institutions, and it has been held that where a bequest is made to such a society and the society is wound up the -doctrine of cy pres will not apply.^ Neither is such a friendly society an assurance company, within the meaning of a covenant contained in a marriage settlement, whereby the husband agreed that he would forthwith effect a policy •of assurance upon his life with some respectable assurance company for a certain sum and assign the policy to trustees. A policy of assurance effected with a friendly society, if it be not assignable, or if it be less beneficial than a policy elBfected with an ordinary assurance company, it was said,' is not within the meaning of such coVenant. § 46. Incorporating Under General L.aws. — Under the general corporation laws all persons who comply with the prescribed conditions may become a corporation. A sub- stantial compliance with all the terms of the law is a pre- requisite and, though in the first instance the secretary of State, or other person charged with the duty of filing .articles of incorporation and issuing a certificate thereof, may decide whether the provisions of the statute have been -complied with, the ultimate decision rests always with the courts.^ A recent able writer on the subject has so concisely stated the law of organization of corporations under the gen- eral law that we cannot do better than to quote his words : "A substantial compliance with all the terms of a general incorporation law is a prerequisite of the right of forming a corp6ration under it. Thus, where it is provided that a certificate, or articles of association, setting forth the pur- poses of the corporation about to be formed, the amount of •its capital and otiier details, shall be filed with some public » Re Clark, 1 L. R. Ch. D. 497; L. J. Ch. 194; 24 W. R. 233. * Courtenay v. Courtenay, 3 Jones & La. T. 519. * Morawetz on Corp., §§ 15 and 27. 48 ORGANIZATION, POWEliS AND LIABILITIES. § 46 officer, a performance of this requirement is essential; and until it has been performed, the association will have no right whatever to assume corporate franchises. So, under some statutes, a license or certificate must be issued by a specified public officer before the corporation can be legally formed. The articles of incorporation must contain every- thing in substance thai the laws under which the corpora- tion is organized prescribe. Thus, if it is prescribed that the number or the names of the first directors of the ■corporation shall be set'forth, a compliance with this pro- vision is essential. A provision requiring the articles of 'incorporation to set forth that a majority of the members of the association voted at the first election of directors is obligatory ; and if the articles omit the required statement, proof cannot be admitted to show that a majority were in fact present and voted. Under a law requiring a certifi- ■cate to be filed showing the manner of carrying on the business of the association, it is not sufficient to state merely that the manner of carrying on the business shall be such ^3 the association may, from time to time, prescribe by rules, regulation and by-laws. Any other conditions prec- ■edent imposed by the express terms of the law must, of <30urse, be complied with before the corporators can law- fully form a corporation. Upon the same general principle it follows that a corporation cannot lawfully act in a foreign State and carry on business there, until all conditions prec- edent, prescribed by the laws of such State, have been performed."^ The Supreme Court of Ohio^ held that where the certificate provided that the manner of carrying on the business should be such as the association should, " from time to time, prescribe by its rules and by-laws," not inconsistent with the State laws, it did not sufficiently comply with the statute requiring the certificate to specify > Morawetz on Corp., §§ 27 and 28; also §§ 641, 645, 939. * State D. Central Ohio Belief Association, 29 Ohio St. 407. 4 49 § 47 ORGANIZATION, POWKKS AND LIABILITIES. "the manner of carrying on the business." A general incorporation act can never be extended by constructiop to cases not reasonably within its terms. Upon this point the Supreme Court of Michigan has said:^ " The- present association was probably incorporated under the act in question, not as being precisely applicable, but as coming nearer to the purposes sought than any other statute. But it must always be remembered that no act for creating corporations can ever be extended by construction to cases not reasonably covered by its terms. It can never be assumed that incorporation will be allowed until the at- tention of the legislature has been given to each subject meant to be covered. The determination of the powers and conditions of corporate existence is peculiarly a matter of policy and not of law and requires legislative judgment. There are many lawful purposes for which no corporate pow- ers have been granted, and there is much difference between the terms of such corporation laws as have been enacted." A statute enlarging the powers of a beneficiary association takes effect without formal adoption by the association and, when after such legislation, an application for membership is accepted, it cannot be said, in the absence of any express determination on the part of the association, that it was exercising the more limited powers under the earlier statute.* § 47. Corporate Powers. — It is a well settled principle that a corporation has no other powers than such as are specifically granted; or such as are necessary for the pur- pose of carrying into effect the powers expressly granted.* " A corporation and an individual," says a standard authority,* " stand upon a very different footing. The ' Stewart v. Father Matthew Society, 41 Mich. 67. 2 Mass. Catholic Order, etc., v. CaUahan (Mass.), 6 N. Eng. Bep. 95; 16 N. East. Eep. 14. 8 Ang. & Ames on Corp., § 111. * Aug. & Ames on Corp., § 256. ORGANIZATIOX, POWERS AND LIABILITIES. J 4? latter, existing for the good of society, may do all acts, and make all contracts which are not in the eye of the law inconsistent with this great purpose of his creation; whereas, the former, having been created for a specific purpose, not only can make no contract forbidden by its charter, which is as it were, the law of its nature, but in general can make no contract which is not necessary either directly or incidentally, to enable it to answer that pur- pose." § 48. The Charter the Source of Corporate Powers. — The charter, therefore, or the articles of association, is the fountain of authority for the corporation. It contains the agreement and contract on the part of the corporators and the State which specifies the terms of association and the limits and bounds in which the associated body can act.^ And it is a settled rule that a person who deals with a corporation must, at his peril, take notice of its charter or articles of asssociation. The rule applies to both foreign and domestic corporations and rests on the necessities of tlie case. All persons having transactions with corporate bodies must not only notice the terms of their charters, but also aJl the general legislation of the State creating them, by which business with corporations is affected.^ Char- ters of corporations and articles of association of un- incorporated societies are construed like other written instruments. The object is to "discover the intention of the parties, and to this end, and to carry out the objects of the ©rganization, a liberal policy has been generally adopted.* § 49. The Modern Idea of Corporations. — The modern, and most approved doctrine concerning the nature of a cor- poration is that it is simply a voluntary association of per- 1 Morawetz on Corp., § 642 and 818, and cases cited. ' Morawetz on Corp., §§ 591, 592. • Morawetz on Corp., §§ 316-338 inc. 51 § 49 OEGANIZATION, POWERS AND LABILITIES. sons, endowed by the law with certain special privileges, conferred by the general acts concerning .corporations or the special charter, chief among which is always that of a Ante, § 50. 2 State r. Farmers, etc., Benev. Assn., 18 Neb. 276 ; 26 N. W. Rep. 81 ; State ex rel., etc., v. Jlerchants' Exchange BencTOlent, etc., 72 Mo. 146; State V. Vigilant Ins. Co., 30 K-in. 585; State e. Citizens' Benef. Assn., « Mo. App. 163; Golden Rule v. People, 118 HI. 492; (7 "West Rep. 219; 9 N. East. Rep. 342); State v. Bankers, etc., As.sn., 23 Kan. 499; Bolton «. Bolton, 73 Me. 299; States. Standard Life Assn., 38 Ohio St. 281; Fanner v. State (Tex.), 7 S. W. Rep. 220. ' State V. Citizens Benef. Assn., 6 Mo. App. 163. 55 § 51 ORGANIZATION, POWERS AND LIABILITIES. defendant with its members is a contract of insurance, then it would appear that the main, and indeed the only, object of its existence is to do an insurance business. It is not a so- ciety bound together by any other common object, men of all races, creeds, professions and classes may belong to it; and it can in no respect be assimilated to organizations- formed for religious, benevolent or literary purposes. Its^ one feature is life insurance; its active officers are paid; and it offers a premium for bringing in new risks. The only condition of membership is a certain condition of health and probability of duration of Ufe. The case presented is- not that of an organization whose primary object is social^ literary, or benevolent, and to which a feature of mutual insurance is added for mutual aid. Such associations may exist which cannot be said to be carrying on the business of insurance, and with which we suppose it was not tlie inten- tion of the legislature to interfere." The Supreme Court of Iowa, in a recent case,^ in passing directly on the question whether an organization, fraternal in its nature yet affording indemnity in the nature of life insurance, was subject to the provisions of the Iowa statutes relative to life insurance companies, said: " The association has assumed the characteristics of a fraternal organization, and also of a life insurance company. The former, how- ever, possibly predominate; for it is true, we think, that many, if not all, fraternal associations dispense in som& form pecuniary benefits, and that purely life insurance com- panies do not have what is called secret work, a pass-word, or anything of a moral or scientific character, which in any manner affects the organization. Nor do purely fraternal organizations require that the member should be insurable. It is evident that the declared objects of the association should not alone be the controlling consideration, for they may be a mere pretense. To ascertain the primary pur- 1 state V. Miller, 66 la. -26. 56 ORGANIZATION, POWERS ANO LIABILITIES. § 5t pose of this association, reference must be liad to the busi-^ ness conducted, the manner of conducting it, and what provisions have been adopted for carrying into effect the several avowecf objects of the organization. Doing this, we find that the certificate of membership provides that upon the death of each member there shall be paid to such per- son as he may designate the sum of $2,000 and that there- under he or his beneficiary is entitled to nothing more. " Elaborate and stringent provisions are made in relation. to the beneficiary fund payable on the death of a member and for collecting and enforcing the payment of such amounts as are assessed on each member; but we have been unable to discover any provision for enforcing any of the other declared objects of the association stated in the preamble to the constitution of the Supreme Lodge, in- cluding ' sick benefits.' If the provisions of a fraternal' character be eliminated from the association, its primary and only purpose is that of a life insurance organization.^ We are satisfied, from an examination of the record, that the primary purpose of the association of the Ancient Order of United Workmen is to provide a beneficiary fund to be paid upon the death of each member, and that the avowed fraternal character of the association is merely inci- dental thereto. In fact, we go farther than this, and from the record find that one of two things is true ; that is to say, either the fraternal objects of the association as avowed have been abandoned, or they never were intended to be- enforced. We find no evidence of their enforcement, or that they ever were regarded as material by the members of the association; while, on the other hand, the provisions in relation to the beneficiary fund have been enforced, and the accumulation and payment of such fund has been regarded ' state V. Bankers and Merchants' Miit. B. A., 23 Kan. 499; Folmer's- Appe.ll, 87 I'a. St. l.. Parkins, 2 Jac & Walk. 390; EUison v. Bignold, Id. 511; Pearce v. Piper, 17 Ves. 1. s Lowiy et al. c. Stotzer et al., 7 Phila. 397; Toram v. Howard Assn., 4 Barr, 519. * Gorman v. RnsseU, 14 Cal. 581. ' See ante, § 39. ■* Morawetz on Corp., § 1004. 68 ORGANIZATION, POWERS AND LIABILITIES. § fiO ject that there is a broad and fundamental distinction be- tween the dissolution of a corporation and the loss of its franchise or legal right to exist. An association may still be a corporation de facto though not de Jure and vice versa .^ • § 59. When Equity will Interfere. — Upon sufficient cause shown a court of equity will always interfere to pre- vent a misuse of corporate franchises or abuse of the rights of members and will wind up the association if it is mani- fest that it cannot accomplish the purposes of its organiza- tion. The comprehensive and flexible rules of equitable jurisprudence apply to all kinds of corporations and courts of equity are always open to those who are wronged or aggrieved by the tortious acts or the mismanagement of the officers or members of these associations. In a recent case^ the Supreme Court of Michigan said: "Although a court of equity may not decree a dissolution of the corpo- ration, yet, in virtue of its general jurisdiction over trusts, and to afford remedies in cases where courts of law are in- adequate to grant relief, it has jurisdiction to grant relief against a corporation upon the same terms it might against an individual under similar circumstances."^ And a cor- poration which by its articles of association is to continue a certain number of years cannot dissolve itself until that period has expired unless all the shareholders consent.* § 60. Forfeiture of Corporate Franchises. — Only the State can claim the forfeiture of corporate franchises for 1 Morawetz on Corp., § 1002. ' Stamm v. Northwestern Mutual Benefit Assn., 8 West. Eep. 771 ; 32 N. "W. Rep. 710. 8 Cramer v. Bird, L. R. 6 Eq. 143; Re Suburban Hotel Co., L. E. 2 Ch. App. 737-743-750; Marr v. Union Bank, 4 Coldw. 484; Bradt d. Bene- dict, 17 N. Y. 93; Slee v. Bloom, 19 Johns. 456; 10 Am. Dec. 273. * Barton v. Enterprise B. & L. Assn. (Ind.), 13 West. Rep. 816; 16 N, East. Rep. 486; Von Schmidt v. Huntington, 1 Cal. 55, 73, 69 § 60 OnGAXlZATION, POWEES AND LIABILITIES. wrongful acts of omission or commission.^ The Supreme Court of California ^ has thus laid down the general rule : " There is a broad and obvious distinction between such acts as are declared necessary steps in the process of incor- poration, and such as are required of the individuals seek- ing to become incorporated, but which are not made prerequisites to the assumption of corporate powers. In respect to the former any material omission will be fatal to the existence of the corporation, and may be taken advant- age of collaterally in any form in which the fact of incor- poration can properly be called in question. In respect to the la,tter, the corporation is responsible only to the govern- ment, and in a direct proceeeding to forfeit its charter." * 1 Morawetz on Corp., § 1015. ' Mokelumne Mining Co. «. Woodbuiy, 14 Cal. 424, 426; 23 Am. Dec. 658. ' Morawetz on Corp., § 31, and cases cited. 70 CHAPTER m. GOVERNMENT AND MEMBERSHIP: BY-LAWS. 61. Plan of Organization of Benefit Societies. 61o. Element of Property Rights of Members. 62. Common Characteristics of Corporations and Voluntary Associ- ations. 63. Membership Governed by Articles of Association or Charter. 64. Majority can Bind Minority. 65. Limitations on Action of Majority. 66. Must act at Properly called Meeting. 67. Meetings of Association or Corporation, Notice of. 68. Jurisdiction of Grand and Supreme Lodges. €9. Articles of Association, or Constitution and By-Laws, Regulate Rights and Powers of Officers and Members. 70. An Early Masonic Case. 71. The Odd-fellows' Case, Austin v. Searing: Power of Grand Lodge of Voluntary Association over Subordinate Lodges. 72. Other Cases Involving same Question: the Element of Incorpo- ration. 73. Distinction between Social Organizations and those Furnishing Insurance Indemnity. 74. Supreme, Grand and Subordinate Lodgesia Single Organization. 75. Rights of Minority. 76. Analogy between Lodges and Churches. 77. Property Rights of Religious Societies, how Determined. 78. Benefit Societies doing a Life Insurance Business are like other Life Insurance Corporations. 79. By-Laws: Definition of. •80. By Whom and How Made : Repeal : Vested Rights. -81. Binding upon all Members : All are Presumed to Know Them. 82. Requisites of Valid By-Laws. 83. Must be Consistent with Charter. 84. Must not be Contrary to Common or Statute Law. 95. Must be Reasonable. 86. Construction of By-Laws Question for Court. 87. What is Bad as a By-Law may be good as a Contract : Exception. ■88. Enforcement of By-Laws. 89. Distinction between Voluntary Associations, where no Property Right is Involved, and Corporations in Regard to By-Laws. SO. Societies have a Right to the Service of their Members. 71 § 61 GOVERNMENT AND MEMBERSHIP: BY-LAWS. 91. The Articles of Association, or Charter, forms a Contract between. the Society and the Members. 92. By-Laws Kelating to Sick Benefits. 93. Construction of Same. 94. Proceedings to Obtain Sick Benefits : Eights of Members to Besort to Civil Courts. 95. Expulsion of Members. 96. Same Eules Apply to Incorporated and TTnincorporated Societies. 97. Power of Corporation to Expel Members when Charter is Silent: Grounds for Expulsion. 98. English Rule as to Voluntary Associations. 99. When no Power to Expel Exists. 100. Power to Expel belongs to Body Generally : Cannot be Delegated.. 101. Procedure for Expulsion: Notice. 102. Procedure Continued: Charges: Trial. 103. Charges must be Sufficient. 104. Expulsion of Members of Subordinate Lodges of a Beneficial; Order. 104a. Acquittal: Appeal. 105. Courts will not Interfere if no Property Eight is Involved. 106. Courts wiU not Inquire into Merits of Expulsion. 107. When Injured Member can Eesort to the Courts. 108. The Jurisdiction of Equity. 109. The Remedy of Mandamus : What the Court will Consider. 110. Presumption of Eegularity of Expulsion Proceedings. 111. Withdrawal of Member of Voluntary Association. 112. Personal Liability of Members of Unincorporated Society. 113. Personal Liability of Members, how Avoided. 114. Individual Liability for Sick or Puneral Benefits. 115. Liability of Person Contracting in name of Voluntary Associ- ation. 116. Summary of Principles Stated In this Chapter. § 61. Plan of Organization of Benefit Societies., — A majority of benefit societies are fraternal and social in their organization and have secret meetings and rituals. Fre- quently the organization is composed of several distinct^ but not entirely disconnected, judicatories or assemblies. The subordinate lodges or associations, most numerous, are first; above these are State, or district, societies, or grand lodges, made up of representatives from the local lodges, and over all is sometimes a supreme or national, governing body, composed of delegates from the State or 72 GOVERNMENT AND MEMBERSHIP: BY-LAWS. § 62' district grand lodges. These various organizations ar& sometimes incorporated, often mere voluntary associations, and frequently the subordinate lodges or grand lodges are corporations while the governing authority, to which they acknowledge subjection, is a voluntary association. This complex situation gives rise to different rules applicable to the varying circumstances and at times renders it difficult to apply the proper legal principles to the various cases. ^ § 61a. Element of .Property Rights of Members. — The law under some circumstances distinguishes between the societies which are incorporated and those that are mere vol- untary associations, and again between questions involving- the property rights of members and those concerning disci- pline only or policy of government. In regard to the latter the Supreme Court of Indiana - has said : " Claims for money due by virtue of an agreement are unlike mere matters of discipline, questions of doctrine, or of policy, and are not governed by the same rules. * * * One who asserts a claim to money due on a contract, occupies an essentially different position from one who presents a question of dis- cipline, of policy, or of doctrine of the order or fraternity to which he belongs." Questions of discipline of members where the membership involves, or has connected with it property rights, are differerently regarded from disputes concerning membership in mere social clubs when such membership has no element of property connected with it. These differences will appear as the subject is further discussed.^ § 62. Common Characteristics of Corporations and Voluntary Associations. — Remembering that a corpora- tion is simplj' a voluntary association of persons for an, 1 Ante, § 11. ' Bauer v. Sampson Lodge, etc., 102 Ind. 2i:2. * Post, §§ 105, 106, 107, 10!!. 73 ^ (}3 GOVERNMENT AND MEMBERSHIP: BY-LAWS. agreed and lawful purpose, endowed by the State with an imaginary entity or individuality, and also that " the real najture of a corporation, in every case, depends upon the charter under which it is formed and must be determined by reference thereto,"^ it follows that voluntary associations of all kinds, whether partnerships, charities, corporations or mere clubs or societies, have many characteristics and rules in common, ^he principal of which is that all rights of the members and their powers, as well as of the association •or corporation, are derived from the original compact be- tween them which is contained in the articles of association or charter.* § 63. Membership Governed by Articles of Association or Charter. — The articles of association, or charter, reg- ulate the admission of members of societies and define their qualifications. The rule is applicable to all associations, incorporated or voluntary, and if wrongfully admitted the member can be expelled. The Supreme Court of Pennsyl- vania * has said : " It is true the power of admitting new members being incidental to a corporation aggregate, it is not necessary that such power be expressly conferred by the statute. Yet when the statute does limit and restrict the power, it erects d barrier beyond which no by-laws can pass." Where the statute required all practicing physicians to become members of the county medical society, and a physician so applying was rejected because of alleged un- professional acts in violation of the society's by-laws, the New York Court of Appeals held * that the code of medical •ethics adopted by such a society was binding on members alone and its non-observance previous to membership fur- 1 Morawetz on Corp., §§ 6, 7, 316, 580. 2 Leech v. Harris, 2 Brewst. 571; Commonwealth v. St. Patrick's Soc, 2 Binn 441 ; 4 Am. Dec. 453; post, § 69. » Diligent Fire Co. v. Commonwealth, 75 Pa. St. 291. « People V. Erie Medical Society, 32 N. Y. 187. 7* I GOVERNMENT AND MEMBERSHIP : BY-LAWS. § 64 nishes no legal cause for either exclusion or expulsion. But in this case the party excluded had a clear presumptive title lor admission to the exercise of a corporate franchise.^ § 64. Majority can Bind Minority. — Another funda- mental rule applicable to all associations, partnerships and corporations is that, within the express or implied terms of the charter or partnership agreement, the majority has power to bind the entire membership.^ The rule laid down in regard to partnerships and companies by Lindley ,* is : " A corporation acts by a majority ; the will of the majority is the will of the corporation ; and whatever it is competent for the corporation to do can be done by a majority of its members against the will of the minority. * * * it ap- pears: (1.) That within the limits set by the original con- stitution of a partnership or company, the voice of a majority must prevail. (2.) That it is not competent for any num- ber of partners or, shareholders, less than all, to pass beyond those limits. (3.) That it is competent for all to St. Mary's Ben. Assn. v. Lynch (N. H.), 9 Atl. Eep. 98; 4 N. Eng. Kep. 163. ' Morawetz on Corp., §§ 478 to 483. » McCabe v. Father .Matthew, etc., 24 Hun, 149; Robinson v. Yates City Lodge, 86 m. 598. 77 § 83 GOVERNMENT AND MEMBERSHIP: BY-LAWS. that are subordinate is in many respects analogous to that of certain ecclesiastical bodies over the churches in a cer- tain territory. Upon this subject the Supreme Court of the United States has said: ^ " The right to organize volun- tary religious associations to assist in the expression and dissemination of any religious doctrine and to create tribu- nals for the decision of controverted questions of faith within the association and for the ecclesiastical government of all the individual members, congregations and officers- within the general association, is unquestioned. All wha unite themselves to such a body do so with an implied con- sent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions and of their right to establish tribunals for the de- cision of questions arising among themselves, that those decisions "should be binding in all cases of ecclesiastical cog- nizance, subject only to such appeals as the organism itself provides for.' ' ^ The preponderance of authority is in favor of the doctrine that as to all questions of policy, disciphne, internal government and custom the legal tribunals must accept as binding the decision of the regularly constituted judicatories of the church, fraternity, association or society. The rule is different when property rights are involved. lu such cases the civil courts are strict in asserting their powers. § 69. Articles of Association, or 'Constitution and By- laws, Regulate Rights and Powers of OCacers and Mem- bers. — The rights and powers of the oflScers and members of the associations or lodges, superior or subordinate, are 1 Watson V. Jones, 13 Wall. 679. > This opinion reviews all the cases bearing on the subject, but they are here omitted because they relate to ecclesiastical oi'gauizations only. 78 GOVEENMENT AND MEMBERSHIP: BY-LAWS. § 70 regulated by their articles of associations, or constitution and by-laws, which constitute the contract of the members with each other and by the provisions of which they under- take to be bound. ^ In all cases of disphte as to rights or duties of the various bodies, their oflScers or members, the original compact is the measure by which a decision is to be reached.^ The opinions of the officers of the society, or its custom and usage in respect to the interpretation of terms used in the contract, are not admissible evidence in actions on the codttact if the language used be not am- biguous.^ § 70. An Early Masonic Case. — One of the earliest cases involving the rights of grand and subordinate lodges in respect to each other and the property of either was that of Smith et al. v. Smith et al. in 1813.^ It involved the right to a certain fund belonging to the incorporated Grand Lodge of Ancient York Masons and was brought by the plaintiffs in behalf of a voluntary association claiming to be the successor of the corporation under the name of Grand Lodge of South Carolina. Incidentally the distinction be- tween certain Masonic bodies and doctrines was discussed. The general rule laid down was that the Grand Lodge of Freemasons cannot make new regulations subversive of fundamental principles and landmarks without the clear consent of the subordinate 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 1 Ante, § 62. * Lowry V. Stotzer, 7 Phila. 397; Austin v. Searing, 16 N. Y. 112; Chamberlain v. Lincoln, 129 Mass. 70; Leech v. Harris, 2 Brews. 587; Grosvenor d. United Society, etc., 118 Mass. 78; White v. Brownell, 3 Abb. Pr. (N. s.) 318. , ' Manson v. Grand Lodge, 30 Minn. 509; Davidson v. Knights of Pythias, 22 Mo. App. 263; Wiggins. Knights ol Pythias, 31 Fed. Rep. 122. * 3 Dessau. 567. 79 § 71 GOVERNMENT AND MEMBERSHIP : BY-LAWS. society. The dereliction of the charter by the heads of a cor- poration does not dissolve the corporate body, especially if the remaining members have the power of renovating the head. The seceding members of a chartered society, form- ing a new voluntary association, cannot sustain a suit for the recovery of debts due to the corporation.^ § 71. The Odd-fellows' Case, Austin v. Searing: Power ■of Grand Lodge of Voluntary Association over Subor- dinate Liodges. — The Court of Appeals of New York was " early called upon to determine rights under the complex organization of the Odd-fellows' fraternity, where all the constituent bodies were unincorporated. In that case ^ Judge Selden said: "The complaint, upon which the •questions in this case arise,, sets out what appears to be a regular governmental organization, with its constitution and laws, and powers legislative and judicial. The head of this organization is a congress of representatives, called the Grand Lodge of the United States, which not only legis- lates for all lodges in the several States, but also exercises judicial powers over them, for the complaint states that the grand lodges of the several States are subject at all times to the resolves, orders and decrees of the congress of rep- resentatives and are amenable to its constitutional author- ity. The grand lodges of the several States and districts exercise similar powers. They grant, revoke and renew charters, make by-laws, and pass judicially upon charges presented against subordinate lodges, expelling or reinstat- ing them at pleasure. These powers extend to the confis- cation of the entire property of a subordinate lodge, 1 Goodman v. Jedidjah Lodge, etc. (Md.), 8 Cent. Rep. 278; 9 Atl. 13; District Grand Lodge v. Jedidjah Lodge, 65 Md. 236; Court Mount Royal -«. Boulton, Q. B. (Quebec) 1881 ; cited 2 Stephen's Digest 106. But see Altmann v. Benz, 27 N. J. Eq. 331. 2 Austin V. Searing, 16 N. Y. 112j s. c. 69 Am. Dec. 665, where valuable jiote is appended. 80 GOVhENMENT AND MEMBERSHIP : BY-LAWS. § 71 -whenever, in the opinion of the grand lodge, upon a case brought regularly before it, it shall satisfactorily appear that such subordinate lodge is guilty of insubordination. !Now, all this is very well, so long as the lodges neither violate nor ask any aid from the laws ; but it may, with propri- ety, be doubted whether the judicial power of the State is to be invoked to uphold and enforce the decrees of these self -constituted judicatories. It is to be remarked that these lodges are charitable institutions, whose objects com- mend them extensively to public favor, and, that there are nearly four hundred of them in northern New York alone, and, being purely voluntary associations, there is, of course, no limit to the amount of property which they may acquire- If this suit can be maintained, then all this property, how- ever vast, is ultimately controlled, not by any power within the State, but by the Grand Lodge of the United States; for, by the constitution of these lodges, as given in the complaint, it will be seen that on the expulsion of any «ubordinate lodge (which is a matter resting entirely in the will of the grand lodge of the State or district), the whole 3)roperty of the lodge expelled is, ipso facto, vested in the ^rand lodge, which is under no obligation to reinstate the lodge or restore the property ; and, as the grand lodge of the State is bound to obey the decrees of the national lodge, the whole property is thus brought under the control of the latter. This is entirely unobjectionable, so long as submis- sion to these decrees is merely voluntary ; but the question is whether that submission is to be legally and judicially enforced. Let us see what a chancellor of England said about a case very similar to this. I refer to the case of Lloyd V. Loaring.J That was a bill filed by Evan Lloyd and two other persons, to get possession of the dresses, decorations, books, papers, etc., of a lodge of Freemasons, called the Caledonia Chapter, No. 2. The plaintiff stated J 6 Ves. 773. 6 81 § 71 GOVERNMENT AND MKllBEKSHIP : BY-LAWS. . that this lodge was regularly organized under a charter fron> the grand or head chapter of Eoyal Arch Masons ; that they were its chief officers, and as such were entitled, by virtue of the rules of the society, to the charge and custody of the property, etc., which the defendants had forcibly removed. The defendants demurred there, as here, to th& bill. The opinion of Lord Chancellor Eldon, in that case, is so precisely applicable to this that I wiU make one or two extracts from it. He said : 'A biU might be filed for a chattel, the plaintiffs stating themselves to be jointly inter- ested in it with several other persons ; but it would be very dangerous to take notice of them as a society having any thing of a constitution in it. In this bill there is a great affectation of a corporate character. They speak of their laws and constftution, and the original charter by which they were constituted. In CuUen v. The Duke of Queensbury,*^ Lord Thurlow said he would convince the parties that they had no laws and constitution.' And again : ' That this court will hold jurisdiction to have a chattel delivered up, I have no doubt ; but I am alarmed at the notion that these volun- tary societies are to be permitted to state all their laws, forms- and constitutions upon the record, and then to tell the court they are individuals, etc. The bill states that they subsist under a charter granted by persons who are now dead; and, therefore, if this charter cannot be produced, the' society is- gone. Upon principles of policy, the courts of this country do not sit to determine upon charters granted by persons who have not the prerogative to grant charters.' This appears to me to be apt and sensible language in the case in which it was used, where the charter, constitution, etc., were barely referred to ; but with what increased force does it apply to the case before us, in which we have spread upon the record two formal constitutions, one of which contains fifteen distinct articles, the other eleven, each article being > 1 Bro. C. C. 101. 82 GOVERNMENT AND MEMBERSHIP: BY-LAWS. § 71 subdivided into a variety of sections, and altogether em- bracing a complete system of governmental polity. There is, however, no objection to all this, provided we apply to these articles the same rules as to ordinary agreements inter partes, and give to them no peculiar force as the constitution and laws of an organized body. Admitting then the action to be well brought, in the name of the treas- urer, under the act of April 7, 1849, about which I will not stop to inquire, it is clear that the plaintiff can only recover by showing either a legal or equitable title to the property in question in the lodge which he represents, that is in the associated members of that lodge. How does he show this? It is conceded by the complaint that the property origin- ally belonged to the lodge expelled, of which the defend- ants were members. The defendants, therefore, were tenants in common, with the plaintiff and his associates, of the property, and had an equal right with them to its cus- tody. It is incumbent on the plaintiff to show a legal transfer of this title. This he assumes to do by showing the expulsion by the grand lodge of the old Cayuga lodge, and the restoration of the new. The effect is supposed to be wrought through the operation of the constitutions of the two lodges. But it is obvious that these constitutions can have no binding force whatever, except what they derive from the assent of each individual member. That is, any member to be bound by them, must have personally as- sented to their provisions. It is only as contracts that these constitutions are in the least obligatory. The counsel for the plaintiff takes this view of the case in his printed argument. He says : ' The court is sitting to judge between individuals as to rights acquired by the contracts between them. It is immaterial whether such contracts are made in the form of subscriptions to general constitutions and by-laws, or to separate articles of agreement.' Viewed then, as contracts,^ these constitutions must be subject to the same rules with 83 § 71 GOVERNMENT AND MEMBERSHIP: BT-LAWS. all other cootracts. It must be clearly shown that the defend- ants have assented to the written constitutions of these lodges. The complaint avers that the members of the present Cayuga lodge, ' have each and every one of them, in conformity with the usages and requirements of the order, subscribed to an article of association, denominated a con- stitution, a copy of which is hereunto annexed,' etc. There is also a general averment that the grand lodges in the sev- eral States have constitutions to which their members are obligated to subscribe, and. do subscribe, and that one of these grand lodges is denominated the Grand Lodge of Northern New York, and that this lodge has public and printed articles of association, styled a constitution, a copy of which is thereunto annexed. But there is no averment that this constitution was ever in fact subscribed by any- body, nor does the cpmplaint contain any direct averment that the defendants ever subscribed the constitution of any lodge, either grand or subordinate. The averment relied upon by the plaintiff upon the subject is this: after stating the existence of the original Cayuga lodgd, and that the plaintiff and his associates and the defendants were all members of that lodge, the complaint proceeds thus: ' that, as such members and associates, they had, each and every one of them, covenanted with each other to observe, obey, conform to and abide by the constitution, by-laws, rules and regulations of the said lodge, and of said Grand Lodge of Northern New York.' Covenanted? How? Under their hands and seals? It is not so averred. There is neither profert nor offer to produce the covenant. Will this do in a legal pleading? I ap- prehend not. It is altogether too vague. Again what •constitution did they covenant to observe? The averment says: 'The constitution, by-laws, etc., of the Cayuga lodge, and of said Grand Lodge of Northern New York, but does not set forth the constitutions in this 84 GOVERNMENT AND MEMBERSHIP: BY-LAWS. § 71 connection, nor give any reference by which they can be identified or their provisions ascertained. We may con- jecture that the plaintiff means the same constitutions which are referred to elsewhere in the complaint, but it is not so averred. If we look at the whole complaint, we shall' see that it is not intended to be averred that the defendants ever subscribed the constitution of the grand lodge itself. It is difficult to see, therefore, how the prdvisions of that instrument are to be made obligatory on the defendants as a contract. There is nothing in the constitution of the ex- pelled lodge (which probably was subscribed by the de- fendants, although that is not in terms averred) which adopts the constitution of the grand lodge. It is this latter constitution alone which confers the power by which the property in question is claimed to have been transferred. But were it distinctly averred that the defendants had subscribed the constitution of the grand as well as of the subordinate lodge, I should still be of the opinion that public policy would not admit of parties binding themselves by such engagements. The effect of some of the provisions of these constitutions is to create a tribunal having power to adjudicate upon the rights of property of all the mem- bers of the subordinate lodges, and to transfer that prop- erty to others ; the members of this tribunal being liable to constant fluctuations, and not subject in any case to the selection or control of the parties upon whose 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 tribunal for themselves, in any specific case, by a submission to ai'bitration, yet the power is guarded by the most cautious rules. A contract that tlie parties wiU submit, confers no power upon the arbitrator; and even where there is an actual submission, it may be re- voked at any time. The law allows the party up to the last moment to ascertain whether there is not some covert «5 § 72 GOVEEXMENT AND MEMBERSHIP: BY-LAWS. bias or prejudice on the part of the arbitrator chosen. It would hardly accord with this scrupulous care to secure fair- ness, in such cases, that parties should be held legally bound by the sort of engagement that exists here, by which the most extensive judicial powers are conferred upon bodies of men whose individual members are subject to continual fluctuation." In the same case in a concurring opinion Judge Brown said: " The by-laws and regulations of these voluntary associations may be all very well in their place and sphere and may command generally the obedience and submission of those upon whom they are designed to act; they cannot, however, have the force of law, nor impair or affect the rights of property against the will of its real owners. So long as the members of these bodies yield their assent or concurrence, it is all very well ; the law interposes no obstacle or objection. But when orders and decrees of the character of those referred to, are resisted, and the owners of property refuse to be deprived of it, then it will be found that property has rights, and the courts of justice have duties, of which the plaintiff in this action has an in- difPerent conception. The courts of justice cannot be called upon to aid in enforcing the decrees of these self-created judicatories. The confiscation and forfeiture of property is an act of sovereign power ; and the aid of this or any other court wUl not be rendered to enforce such proceedings, or to recognize legal, or supposed legal, rights founded upon them." 1 § 72. Other Cases Involving Same Question : the Ele- ment of Incorporation. — In a somewhat similar case in Maryland the Court of Appeals held- that, when the charter granted by the State to a lodge is still in force, the lodge has the right to hold its substantial property or pecuniary rights ' InBaaer v. Sampson Lodge, etc., 102 Ind. 262, this case of Aastin v. Searing was cited and approved; see post, § 72. » Goodman r>. Jedidjah Lodge, etc., 8 Cent. Eep. 278; 9 Atl. Eep. 13. m GOVKllXMKNT AND MEMBKRSHIP : BY-LAWS. § 72 under the corporate powers conferred by that charter, un- affected by the forfeiture of its conventional charter by the grand lodge. That "whatever powers the higher lodges in such an organization as this may have to make rules or laws for the government of the subordinate lodges and the discipline of their members, we think it is quite certain that the courts can never recognize as valid any rule or law so made, the effect of which is to confiscate property, or to arbitrarily take away property rights from one set of mem- bers and give them to {mother set ; nor will the courts allow •or recognize the enforcement of any such rule when its enforcement will accomplish and is designed to accomplish such a result." In Michigan, in a case involving the right •of an incorporated grand lodge to suspend a member for not paying an assessment ordered by the supreme lodge, superior in authority but incorporated in a different State, the Supreme Court said: ^ " 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 this State which would subject a cor- poration created and existing under the laws of this State to I he 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." ^ But in New Jersey the Court of Chancery held' that, where certain members of a subordinate lodge of the order withdrew from the jurisdiction of the grand lodge of the State and surren- dered their charter, forming a new lodge under the same name, and the minority of the members continued steadfast ' Lamphere v. Grand Lodge,"47 Mich. 429. ' State ex rel.,etc. ti. Miller et al., 66 la. 26; Grand Lodge v. Stepp, 14 Pittsb. Leg. J. 164; 3 Penny. 45; Bauer v. Sampson Lodge, 102 Ind. 262; Allnutt B. High Court of Poresters (Mich.), 28 N. W. Rep. 802. ^ Altmann v. Benz et al., 27 N. J. £q. 331. 87 § 73 GOVERNMENT AND MKJIUEESHIP: BY-LAWS. in their allegiance and the surrendered charter was redeliv- ered to them as the lodge, the body which continued tru<> in its allegiance was entitled to the property of the society and was the true original lodge. In this case the analogy to religious associations was clearly considered, for the court refers to a decision of its own in a church dispute.* And in a case in Missouri,^ it was held that an incorporated lodge of Odd-fellows has the right, through its proper officers and in accordance with its established rules, to determine who- are not members thereof, and the courts will leave that question to be determined by the lodge itself, through the judicial action of its proper officers, regardless of whether the charter of the lodge in which membership is claimed, gives, in express terms, such power to these officers. But in this case no property right was involved. The sub- ordinate lodge, whose charter had been arrested and then restored, had, in voting for the members to whom such charter was to be restored, excluded the plaintiffs, wha sought to be reinstated by mandaraus. The court places its decision on the ground of the assent of relators to what was done, and their further consent that they should have no vested right in what was called the property of the lodge. In this case also the analogy of fraternal societies to relig- ious associations was admitted.^ § 73. Distinction between Social Organizations an. Avery, 2 Bush, 333; John's Island Church Case, 2 Rich. Eq. 215; Ferraris V. VasconceUes, 23 lU. 456; Chase v. Cheney, 58 111. 509; Watson c. Far- ris, 45 Mo. 183; German Kef. Ch. o. Seibert, 3 Barr, 291; JIcGinnisw. Watson, 41 Pa. St. 21 ; Contra, as to jurisdiction, Watson v. Avery, 2 Bush, 332; Watson v. Avery, 3 Bush, 635; See also Altmann v. Benz, 27 N. J. Eq. 331 ; Hendrickion v. Shotwell, 1 N. J. Eq. 577. 93 § 79 OOVEBNMEXT AND MEMBERSHIP: BY-LAWS. § 78. Benefit Societies doing a Life Insurance Bus- iness are like other liife Insurance Corporations. — So far as corporations, carrying on a life insurance busi- ness, either on the plan of annual, semi-annual or quar- terly premiums and the accumulation of a reserve fund, or upon the new assessment plan where calls are made, as necessity requires, monthly, or less or more fre- quently, are concerned, it may be said that it is hard to conceive of any reason why such organizations should be governed by any rules different from those regulating other corporations. The contracts of all alike must be judged by the laws applicable to all similar contracts of other corporations. The fundamental agree- ment of the members is contained in the charter and their affairs are administered and contracts made under the rules and restrictions there and in the by-laws contained, subject to the usual qualifications arising out of the application of the law of agency and estoppel.^ §79. By-Laws: Definition of. — By-laws, according to aU the authorities ^ are merely rules, prescribed by the majority^ of the members of an association or corporation, under authority of the other members, for the regulation and management of their joint affairs. In both voluntary and incorporated associations the power depends upon th& articles of association, or charter, which is the fundamental law.* In the case of a corporation the law " tacitly annexes to it the power of making by-laws or private statutes, for its government and support," * and it is implied in every charter that the majority shall have power to make needful by-laws for the regulation of the affairs of the corporation, 1 Morawetz on Corp., Chap. VII. * Morawetz on Corp., § 491 ; Ang. & Ames on Corp., § 327. « St. Mary's, etc., v. Burford's Admr., 70 Pa. St. 321, * Aug. & Ames on Corp., § 325. 94 GOVERNMENT AND MEMBERSHIP: BT-LAWS. § 81 By-laws properly adopted are as binding upon all the mem- bers of the association as a provision contained in the char- ter itself.* § 80. By Whom and how 3Iade : Repeal : "Vested Bights. — Unless delegated to a select body by the articles of association or charter, the power to make by-laws resides, in the body of members themselves and is to be exercised by the majority.^ If the charter, or the fundamental agree- ment of the members, prescribe the mode in which the by- laws shall be made and adopted, in order to insure their validity, that mode must be strictly pursued,^ but if the charter is silent on this subject, the association may adopt by-laws " by its own acts and conduct, and the acts and conduct of its officers, as by an express vote, or an adoption manifested in writing."* The same body which can make by-laws has the power to amend or repeal them, subject to the additional restrictions and limitations of the by-laws themselves as well as those of the articles of association.* But no by-law can be repealed so as to impair or affect vested rights, for the members have the right to rely upon the by-laws which, as between themselves, are contracts. A by-law that will disturb a vested right is unreasonable. § 81. Binding npon All Members : All are Presumed to Know Them. — The by-laws of a society are binding upon all the members and all are conclusively presumed to ^ Morawetz on Corp., §491. ' MoraTvetz on Corp., § 491 ; Ang. & Ames on Corp., § 327. ' Dunston v. Imperial Gas Co., 3 B. & Ad. 125. * Aug. & Ames on Corp., § 328; Union Bank v. Kidgely, 1 Harr. & O. 324. * Morawetz on Corp., § 499; Ang. & Ames on Corp., § 329. ' Fellazzino ». Germ. Catholic, etc., Soc, 16 Cin. L. Bnl. 27; Kent ». Quicksilver Mining Co., 78 N. Y. 150; Morrison v. Wisconsin Odd-fel- lows, etc., Co., 59 Wis. 162; Poultney v. Bachman, 62 How. Pr. 46(j; Gimdlach o. Germania Mech. Assn., 49 How. Pr. 190. But see Fugure v- Soc. St. Joseph, 46 Vt. 362. 95 § 82 GOVERNMENT AND MEMBERSHIP: BY-LAWS. know them. The Supreme Court of Indiana says: ^ " One who becomes a member of such an organization is charge- able with knowledge of its laws and rules and is bound by them. He cannot be ignorant of them, nor can he refuse obedience to them, unless, indeed, they are illegal, or require the performance of acts which the law forbids. 'By-laws not in themselves illegal and not requiring the per- formance of acts contrary to law, must, therefore, be deemed binding upon all persons who become members." ^ The reason of this rule is, that by becoming a member, one impliedly agrees to be bound by all legal acts of the majority under the compact of the articles of association.' Eleemosynary corporations, however, have no incidental powers to make by-laws.* § 82. Requisites of Valid By-laws. — AH by-laws, to be valid, must have three essential and vital qualifications: (1) they must be consistent with the charter or articles of association; (2) they must not be in conflict with any pro- visions of statute or common law, and lastly (3) they must be reasonable. In the case of Kent v. Quicksilver Mining Co.,' the New York Court of Appeals said: "All by-laws must be reasonable and consistent with the general prin- -ciples of the law of the land, which are to be determined by the courts when a case is properly before them. A by-law may regulate or modify the constitution of a cor- poration, but cannot alter it. The alteration of a by-la\j ' Bauer v. Sampson Lodge, 102 Ind. 262. * Fugure v. Mut. Soc. St. Joseph, 46 Vt. 368; Simeral ». Dubuque Mut. F. Ins. Co., 18 la. 319; Coles v. la. State Mut. F. Ins. Co., 18 la. 42S; Coleman v. Knights of Honor, 18 Mo. App. 189; Mitchell v. Lycom- ing Mut. F. Ins. Co., 51 Pa. St. 402; People v. St. George Soc, 28 Mich. 261; Osceola Tribes. Schmidt, 57 Md. 98; Sperry's Appeal (Pa.), 8 Cent. Eep. 215; 9 Atl. Eep. 478. » Morawetz on Corp., § 500a; Ang. & Aines on Corp., § 359. < Ang. & Ames on Corp., § 330. ' 78 N. Y. 159. 96 GOVERNMENT AND MEMBERSUIl' : BY-LAWS. § 83 is but the making of another on the same subject. If the first must be reasonable, and in accord with the principles of law, so must that be which alters it. If, then, the power is reserved to alter, amend, or repeal, and that reservation •enters into a contract, the power reserved is to pass reason- able by-laws agreeable to law."^ § 83. Must be Consistent with Charter. — The prime es- sential of a valid by-law is that it be consistent with the char- ter or articles of association. Upon this subject the Supreme Court of Minnesota has said: * " These articles (of associa- tion) are its charter and, subject to the constitution and weneraJ laws of the State, its fundamental and organic law. Among other things they fix the rights of stockholders. They are in the nature of a fundamental contract, in form between the corporators, — a contract which, as in other ■cases, neither party is at liberty to violate. This can no more be done through the form of by-laws and resolutions of the stockholders adopted and acted upon, than it can in 3,nj other way. The authority to pass by-laws, is, as a mat- ter of course, authority to pass such as are consistent with the articles of incorporation, and not a power to subvert the law of corporate existence. The by-laws of a corpora- tion are only rules and regulations as to the manner in which the corporate powers shall be exercised. Any at- tempt on the part of defendant, by by-laws or otherwise, to deprive an unconsenting stockholder of a right secured to him by the corporate articles, is in excess of corporate authority, or, in legal parlance, ultra vires." ^ In the same line is the declaration of the Supreme Court of Pennsyl- vania* that " no corporation can make any valid by-law in conflict with its charter. That would enable the corpora- ^ Morawetz on Corp., §§ 494, 495, 496. ' Bergman v. St. Paul Mut. Bldg. Assn., 29 Minn. 278. • Ang. & Ames on Corp., § 345. * Diligent Fire Co. b. Conunonwealth, 75 Pa. St. 291. T 97 § 84 GOVERNMENT AND MEMBERSHIP : BY-LAWS. tion to make a new constitution for itself and thereby wholly defeat the object of the law which gave it birth." Upon analogy it follows that voluntary associations cannot pass beyond the limitations of their articles of associatiom so as to bind members not thereto consenting, except by unanimous consent of all their members. By-laws in con- travention of the provisions of a charter are void.^ In a case in New York ^ where the general purpose of the society as declared in the articles of association were, declared to be the welfare of themselves and others, and particularly the mutual relief of the members in times of sickness and dis- tress, it was held that " the society could extend its benefit* to the families of its members, and that such provision in favor of the widows of deceased members, was not only highly meritorious, but fairly within the scope of the gen- eral purposes of the organization. The constitution and laws should have a liberal interpretation, for the purpose of promoting the general objects of the society, and, as such a provision for the benefit of the families of the members is in no way hostile or opposed to the general plan of the organization, I am of the opinion it should be upheld as a proper exercise of the powers conferred upon the associa- tion."* § 84. Must not be Contrary to Common or Statute Law. — The by-laws of all associations and corporations must not be contrary to either statute or common law. In the quaint language of Chief Justice Hobart: * " For, as reason is given to the natural body for the governing of it, 1 Presb. Mut. Ass. Fund ». Allen, 106 Ind. 593; Raub v. Masonic Mut. Eel. Assn., 3 Mackey, 68; People exrel. Stewarts. Father Matthew, etc., Soc, 41 Mich. 67; Ang. & Ames on Corp., § 345 and cases cited; Morawetz on Corp., § 494 and cases cited. 2 Gundlach v. Germania Mech. Assn., 4 Hun, 339; 49 How. Pr. 190. ' Sup. Council, etc., ti. Fairman, 10 Abb. N. C. 162; 62 How. Pr. 386; Barbaro v. Occidental Lodge, 4 Mo. App. 429. * Norris v. Staps, Hob. 211. 98 GOVERNMENT AND MEMBERSHIP: BY-LAWS. § 85 80 the body corporate must have laws, as a politic reason to govern it ; but those laws must ever be subject to the general law of the realm, as subordinate to it." "If a cor- poration undertakes to make by-laws in contravention of the statute they are ultra vires and of no effect." ^ In State V. Williams* the Supreme Court, in passing upon a case where the ceremony of expulsion from a benevolent society involved a battery, held that it could not be lawfully inflicted. " It is not the less a battery because they were all members." ' So a'by-law of a society compelling mem- bers to join in a " strike " is void.^ The Supreme Court of Massachusetts has said:' " The by-law should be con- strued with reference to the statute, and, if practicable, such a meaning should be given to it as will make the two consistent, for it is not to be assumed that the by-law is intended to go beyond the scope of the statute, and thus violate its provisions."* § 85. Must be Reasonable. — A third essential of all by-laws of every association is that they be reasonable. The power to make by-laws is upon the implied condition that it be exercised with discretion : it follows that all rules which are unequal, vexatious, oppressive, or manifestly detrimental to the interests of the society are void.' What ' Am. Legion of Honor v. Peny, 140 Mass. 580; Diligent Hre Co. v. Commonwealtli, 75 Pa. St. 291; Briggs v. Earl, 139 Mass. 473; Kent ». Quicksilver Mining Co., 78 N. Y. 159. 2 75 N. C. 134. 3 Bell 1!. Hansley, 3 Jones, 131. * People V. N. Y. Ben. Soc, 3 Hun, 361. But see Snow v. Wheeler, 113 Mass. 179. ' Elsey V. Odd-fellows' Mut. Relief Assn., 142 Mass. 224. « See cases collected in Ang. & Ames on Corp., §§ 333-4-6, et seq.y specifying particular by-laws which are against statute or common law and therefore void. ' Ang. & Ames on Corp., § 347; Gosling v. Veley, 12 Q. B. 347; People V. Father Matthew, etc., 41 Mich. 67; Cartan v. Father Matthew, etc., 3 Daly, 21. 99 § 85 GOVERNMENT AND MEMBERSHIP: BY-LAWS. are to be deemed reasonable by-laws depends upon the ob- jects and purpose of the society and what might be proper in the case of a social club would be unreasonable if adopted by a benevolent organization.^ Where the purpose of the society was to afford relief in sickness, and to provide for expenses of the funerals of deceased members and their families, it was held by the Supreme Court of Pennsylva- nia,'' that a by-law providing that the widow of a member should not be entitled to benefits if the deceased came to his death because of intemperance was a reasonable regu- lation. In this case the court said: " An association of this kind is formed for the benefit of its members. Being a purely voluntary association, it may adopt such reasoua- ble regulations as are conducive to their interests. Now, unless we deny that temperance and regularity of habits have much to do with health and long life, we must con- cede that the value of the benefits to be derived from such an association depends greatly on the good conduct of its members. Then clearly the members have not only a right to choose their associates, but to stipulate also for the power to prohibit their indulgence in those vices and crimes which multiply disease and death among them and thus diminish the general fund. It is not the purpose of the charter to regulate conduct, and that must be left to divine and human laws. But this law strikes only at those acts which are the causes of disease and death. • • » The by-law therefore appears to be reasonable and to promote the well being of all the associates collectively and indi- vidually." In the same State it was held,^ that where a society was formed for mutual assistance in time of sick- ness or inability to labor a by-law that " no soldier of a standing army, seaman or mariner shall be capable of ad- 1 Commonwealth v. St. Patrick's Benev. Soc, 2 Binn. 441. * St. Mary's Ben. Soc. v. Burford's Admr., 70 Pa. St. 321. * Franklin v. Commonwealth, 10 Pa. St. 359. 100 GOVERNMENT ^ND MEMBERSHIP: BY-LAWS. § 85 mission " was held good, and also the further provision that if a member should enlist as a soldier or become a mariner he should forfeit his membership. By-laws compelling members to do what is absurd, or of no benefit to them- selves or the society are unreasonable,^ and all by-laws con- flicting witii express statute law or public policy are void as unreasonable. A by-law, to be reasonable, must be adapted to the purposes of the so ciety.^ A by-law to ex- pel a member for villifying another member is void.^ In the case just cited. Chief Justice Tilghman said: " The offense of villifying a member, or a private quarrel, is totally unconnected with the affairs of the society and there- fore its punishment cannot be necessary for the good government of the corporation." * A by-law must be equal in its operation and apply to all members alike, it cannot exempt certain members from its operations.* A by-law which provides for the expulsion of a mem- ber without notice is void, because unreasonable ; * and BO are provisions for forfeitures without notice or oppor- tunity to be heard; ^ and by-laws having a retroactive, or 1 Aug. & Ames on Corp., § 348. ' People V. Med. Soc. of Erie, 24 Barb. 5T0; Commonwealth v. German Soc, 15 Pa. St. 251; People v. Med. Soc, etc., 32 N. Y. 189; Dickenson c. Chamber of Commerce, etc., 29 Wis. 49. s Commonwealth v. St. Patrick's Beney. Soc, 2 Binn. 441. * Schmidt v. Abraham Lincoln Lodge (Ky.), 2 S. West. Hep. 156; Mnlroyi?. Supreme Lodge Knights of Honor, 28 Mo. App. 463; Common- wealth V. German Soc, 15 Pa St. 251; Evans «. Phila. Club, 50 Pa. St. 107; Erd v. Bavarian, etc., Assn. (Mich.), 34 N. W. Kep. 555; 11 West. Rep. 171; Allnntt v. High Court of Foresters (Mich.), 28 N. W. Kep. 802. * People V. Father Matthew, etc., 41 Mich. 67; Taylor v. Griswold, 14 N. J. L. 223. * Pulford ti. Fire Department, etc., 31 Mich. 458; Fritz c. Muck, 62 How. Pr. 7i; Wachtel v. Noah Widows', etc., 84 N. Y. 28 ; Commonwealth V. Penn. Ben. Assn., 2 Serg. & R. 141 ; Erd v. Bavarian, etc., Assn. (Mich.), 34 N. W. Rep. 555; 11 West. Rep. 171. ' Roehler v. Mechanics' Aid Soc, 22 Mich. 89; Commonwealth v. Germ. Soc, 15 Pa. St. 251; Queen v. Saddlers' Co., 10 H. of L. Cas. 404; Pul- ,101 § 86 GOVERNMENT AND MEMBERSHIP : BY-LAWS. ex post facto effect. ' A by-law providing that the trustees first elected shall hold office during life is void.^ So is a by-law of a beneficiary society making an appeal of a mem- ber to the civil courts a cause for expulsion.' Whether or not a by-law of a benefit society, to the effect, that if a member "neglects his Easter duties," he thereby forfeits all his rights and interests in the society, is good is doubtful.* § 86. Construction of By-Laws Question for the Court. — The construction of by-laws is in all cases a ques- tion for the court. In construing by-laws courts will interpret them reasonably; not scrutinizing their terms for the purpose of making them void, nor holding them invalid for slight or trivial reasons ; the unreasonableness should clearly appear.* If associations are organized for benevo- lent purposes, courts will not construe their constitutions and by-laws so as to favor the forfeiture of the rights of the members or those dependent on them.* By-laws will ford V. Fire Dept., 31 Mich. 458; Butchers' Ben. Assn., matter of, 38 Pa. St. 298; Green v. African, etc., Soc, 1 Serg. & E. 254. 1 Pulford V. Fire Dept., 31 Mich. 458; Taylor v. Griswold, 14 N. J. L- 223 ;iPhiIlip8 v. Wickliam, 1 Paige, 590 ; Howard v. SaTannah, etc., Charlt. (Ga.), 173; Kent v. Quicksilver M. Co., 78 N. Y. 159. See § 92. 2 State V. Standard L. Assn., 38 Ohio St. 281. s Sweeney v. Rev. Hugh McLaughlin Ben. Soc, 14 W. N. C. 466. ' Matt V. Boman Cath. M. Prot. Soc, 70 la. 455. 5 Genestc. L. Union, etc., 141 Mass. 417; Paxson «. Sweet, 1 Green, 196; State v. Overton, 24 N. J. L. 440; Queen v. Saddlers' Co., 10 H. of L. Cas. 404 ; People v. Sailors' Snug Harbor, 5 Abb. Pr. (N. S.) 119 ; Butch- er's Benef. Assn., 38 Pa. St. 298; People v. Med. Soc. Erie, 32 N. T. 187; Fritz V. Muck, 62 How. Pr. 72 ; Commonwealth v. Worcester, 3 Pick. 462 ; St. Mary's Benef. Soc. v. Burford's Admr., 70 Pa. St. 321; People v. Father Mathew, etc., 41 Mich. 67; Poultney v. Bachman, 62 How. Pr. 466; Pulford v. Fire Department, 31 Mich. 458; Ang. & Ames on Corp., §357. * Schunck v. Gegenzeiten, etc., 44 Wis. 369 ; Frdmann v. Mut. Ins. Co., etc., 44 Wis. 376; BaUou v. Gile, 50 Wis. 614; SchiUinger o. Boes, 9 Ky. L. Bep. 18. 102 GOVERNMENT AND MEMBERSHIP: BY-LAWS. § 88 he construed in reference to the statutes so as to give them •effect if possible.* § 87. What is Bad as a By-Liaw, May be Grood as a Contract : Exception. — What is bad as a by-law, as against common right, may however be good as a contract since, a,s a learned writer expresses it: * "A man may part with a common right voluntarily, of which it would be impolitic and unjust to deprive him by a by-law passed without his assent, or perhaps knpwledge, by those who would not consult his individual interests."' The unanimity of the vote of those present at a meeting will not bind or affect the rights of those absent where the vote is unauthorized.* Yet certain rights are esteemed so sacred that they cannot ■even be parted with by contract, because to permit such action would be against public policy. It has accordingly .been held that a by-law prohibiting members from resorting to the courts, especially where a property right is involved, is void ; " and a by-law of a mutual beneficial society cannot oust the courts of jurisdi ction to determine whether a mem- ber of it has been expelled for sufficient cause. Neither <;an it make an appeal to the civil courts a cause of ezpul- § 88. Enforcement of By-laws. — The power to make by-laws implies the right to enforce them by appropriate penalties. No general rule can be laid down as to what is ' Elsey V. Odd-fellows', 142 Mass. 224; Am. Legion of Honor e. Perry, 140 Mass. 580. ' Ang. & Ames on Corp., § 342. ' Austin «. Searing, 16 N. T. 112; Goddard t. Merchants' Exchange* 79 Mo. 609; 9 Mo. App. 290. * Stetson V. Kempton, 13 Mass. 282. " Supreme ConncU, etc., v. Gcarrigns, 104 Ind. 133 ; Baner v. Sampson Lodge, 102 Ind. 262; Mnlroy v. K. of H., 28 Mo App. 463; Scott c. Avery, 5 H. of L. Cas. 811 ; Insurance Co. v. Morse, 20 Wall. 445 ; Austin v. Sear- ing, 16 N. Y. 112. « Sweeney o. Rer. Hugh McLaughlin Ben. Soc, 14 W. N. C. 466. 108 § 88 GOVERNMENT AND MEJIBERSHIP : BY-LAWS. a reasonable penalty, this must be determined by the nature of the offense. The courts in each case will determine the reasonableness of the penalty. Without going extensively into the subject, it may be said the penalty must be a sum certain ; the specification in the charter of one method of enforcing by-laws is an exclusion of other methods; the offender cannot be imprisoned or his property forfeited for any violation of rules, nor can the offender be disfranchised. The penalty can only be givi-n to the society whose regula- tions are infringed. In a Michigan case i the Supreme Court of that State discussed the doctrines of the law on this subject somewhat elaborately and in the discussion said: " It is well settled that the right to levy burdens on the members is governed to some extent, at least, by the occasion for them.* As the original constitution contained no authority to forfeit membership, the power must be de- rived elsewhere. The charter contains no such power. It is held in Matter of Lojig Island E. K. Co.* that there can be no power to impose forfeitures unless granted by clear legislative enactment. No such power is consistent with ancient right and it cannot be obtained from anything but the sovereignty.* " The only implied means for the en- forcement of corporate charges and penalties is by action. Summary means and methods unknown to the common law must be authorized by express authority. And it would not be reasonable to enforce a pecuniary obligation or pen- alty by means disproportionate to its importance. The law of the land is made the test for analogies in cases where it affords analogies j as is recognized in the case cited and elsewhere. It is equally abhorrent to all reason to allow a forfeiture to be enforced on an alleged default, without 1 Pulford V. Fire Department, 31 Mich. 458. » London Pipe Co. v. 'WoodrofE^e, 7 B. & C. 838. « 19 Wend. 37. ' Westcott V. Minnesota Mining Co., 23 Mich. 145; Kyd on Corp. 109; Ang. & Ames on Corp., § 360 and § 340. 104 GOVERNMENT AND MEMBERSHIP: BY-LAWS. § 89 notice and hearing, or an opportunity to be heard.^ H any expulsion could be had for such a cause, the by-laws them- selves expressly require that there shall be a trial before the trustees, who for this purpose act as a corporate tribunal. But inasmuch as our general corporation law has always limited the penalties for violations of by-laws, expulsion cannot be allowed for any mere infraction of a by-law." ^ § 89. Distinction between Volnntary Associations where no Property Right is Involved, and Corporations in Regard to By-laws. — If no property right be involved a distinction is made, in respect to by-laws and regulations, between incorporated societies and those which are voluntary associations . In the former the by-laws must be reasonable , but in the latter the members are bound by their duly adopted by-laws and regulations, whether they be reasonable or not, provided, however, they are not in conflict with the law of the land, or public policy, and the courts will only examine whether they have been adopted in the way agreed on by the .members.* In Kehlenbeck v. Logeman,* the court said: "It has been held in this court upon more than one occasion in respect to the by-laws of a voluntary asso- ciation the court has no visitorial power and cannot deter- mine whether they are reasonable or unreasonable, and the only question which it can examine is whether they have been adopted in the way which has been agreed upon by the members of the association. * * * The associatioa being a voluntary one, as has above been stated, this court 1 Eoehler v. Mechanics' Aid Soc, 22 Mich. 89; Commonwealth v. Germ. Soc, 16 Pa. St. 251; Queen ». Saddler's Co., 10 H. of. L. Cas. 404; Com. V. Penn. Benev. Assn., 2 Serg. & K. 141. ' Ang. & Ames on Corp., § 360; Erd v. Bavarian, etc., Assn. (Mich.), 34 N. W. Eep. 555; 11 West. Rep. 171; Otto v. Joumeymen Tailors', etc.. Union (Cal.), 17 Pac. Kep. 217. " Elsas V. Alford, 1 City Ct. Eep. 123 ; Manning v. San Antonio Club,. 63 Tex. 166; McDonald v. Eoss-Lewin, 29 Hun, 87. * 10 Daly, 447. 105 § 90 GOVERNMENT AND MEMBERSHIP: BY-LAWS has no power to pass upon the question as to whether such rules and regulations as they choose to adopt for the guid- ance of their own affairs are reasojiable or unreasonable."^ It is doubtful, however, if this rule applies in all cases, especially those in which property rights are inyolved or principles of public policy are violated. Agreements to refer any controversy to arbitrators have not always been upheld,^ especially when harsh or involving forfeitures.* § 90. Societies have a Kight to the Service of their Members. — It is a general rule that all societies have the right to the service of all their members subject to the con- tract of the articles of association and the modifying circumstances of the case. The principle applies to cor- porations, and is thus laid down by an admitted authority: * " A corporation has a right to the service of all its mem- bers, and may make by-laws to enforce it.. It may thus impose a penalty on members eligible to an office, who re- fuse to accept it; or who refuse to take the oath appointed by law, as a necessary qualification for holding it; and on (members who refuse to attend the corporate meetings. Nor, it would seem, is a by-law of this nature less valid, though it require that the person accepting the office shall pay a fee on his admission ; and the court will not scrutinize the reasonableness of the fee, since the members of the ■corporation have assented to the reasonableness of the amount ; which raises a presumption that under their pecu- 1 White V. Brownell, 2 Daly, 329; Hyde v. Woods, 2 Saw. 655; Innes e. Wylie, 1 Car. & K. 262; Fritz v. Muck, 66 How. Pr. 74. 2 Heath v. N. Y. Gold Exch., 7 Abb. Pr. (n. s.) 251; 38 How. Pr. 168} Savannah Cotton Exchange v. State, 51 Ga. 668. 3 Bauer v. Sampson Lodge, 102 Ind. 262; Supreme Council «. Garrigus, 104 Ind. 133; Austin b. Searing, 16 N. Y. 112; Mulroy v. Supreme Lodge K. of H., 28 Mo. App, 463; Goodman v. Jedldjah Lodge, 66 Md. 236; Oray v. Christian Soc, 137 Mass. 329; s. c. 50 Am. Kep. 310. See post, § 450. * Ang. & Ames on Corp., § 352. 106 GOVERNMENT AND MEMBERSHIP: BY-LAWS. § 91 liar circumstances it is reasonable, or, at least, that they ^eem it so." § 91. The Articles of Association, or Charter, forms a Contract between the Society and the Members. — The rights of members of all societies, incorporated or not, de- pend upon the articles of association or charter to which the member assents upon becoming such. Practically, all the cases which relate to societies or corporations and which are cited in this work, recognize this fact and declare the doctrine. The Supreme Court of Pennsylvania says: ^ " Each member pledges himself to obey these laws as a condition of his membership, by an express undertaking in signing the constitution, and his promise to support the con- stitution and by-laws as a brotherly member. Nor is this pledge executed under the by-laws until he shall have an- swered on his word of truth that he is acquainted with the constitution and by-laws. * * * The association hav- ing the right under its charter to make the by-law for the well being of the society and the proper regulation of its affairs, the regulation being a reasonable and proper one, contributing to the value of membership, and the good of the association, and the member having accepted the by-law in express terms in his entry into membership, the by-law constitutes a part of the terms of the contract." In Texas the Supreme Court of the State has said: ^ " When member- ship in certain societies confers upon the individual important benefits, as in aid societies, benevolent societies, etc., or pe- culiar advantages in trade and business, as in chambers of commerce, these are important valuable rights which are protected by the law of the land, and aie generally secured in some way by the charter of incorporation. • • • But we think it has been generally held that clubs or societies, 1 St. Mary's Benef. Soc. v. Burford's Admr., 70 Pa. St. 321. * Manning v. San Antonio Club, 63 Tex. 166; «. c. 51 Am. Rep. 639. 107 § 92 GOVERNMENT AND MEMBERSHIP: BY-LAWS. whether religious, literary or social, have the right lo make their own rules upon the subject of the admission or exclu- sion of members, and these rules may be considered as ar- ticles of agreement to which all who become members are parties. • * • The fact that a club or society is incor- porated would not, we think, in any way affect its right to make its own rules, unless there was something in the char- ter or in the general law under which it was incorporated which controlled it in this respect." ^ § 92. By-laws Kelatlng to Sick Benefits. — Many ben- efit societies provide in their by-laws for a certain sum to be paid to a member in case of his sickness. The question has sometimes arisen as to the respective rights and liabili- ties of the jnember and the society in regard to these bene- fits. In all these cases it has been held that the laws of the society are to be considered in determining the right, and they are to govern unless contrary to municipal law. In St. Patrick's Male Soc. v. McVey,^ the Supreme Court of Pennsylvania held that a member of a beneficial society does not stand in the relation of a creditor to it, and can only claim such benefits as are prescribed by the by-laws existing at the time he applies for relief; that it is wrong to treat the by-law, in existence when the plaintiff became a member, as part of a contract unalterable except with his 1 Van Poncke v. Netherland Soc. (Mich.), 6 West. Eep. 132; 29 N. W. Rep. 863; Sperry'8 Appeal (Pa.), 8 Cent. Rep. 215; 9 Atl. 478; McCabe r. Father Mathew, etc., 24 Hun, 149; Gooch o. Assn. Aged Females, 109 Mass. 558; Skelly v. Private Coachmen's Ben. Soc, 13 Daly, 2; Banei v. Sampson Lodge K. of P., 102 Ind. 262; Harrington d. Workingmen'a Assn., 70 Ga. 340; Black & Whitesmith's Soc. v. Vandyke, 2 Whart. 312; Osceola Tribe v. Schmidt, 57 Md. 98; Flemyng v. Hector, 2 M. & W. 171; Innes v. Wylie, 1 Car. & K. 262; Branckej v. Roberts, 7 Jnr. (n. s ) 1185; HopMnson o. Marquis of Exeter, L. R. 5 Eq. 63; Thompson i). Adams, 7 W. N. C. 281; Moxey's Appeal, 9 W. X. C. 441; Protchett v. Sch.iefer, 11 PhUa. 166; Heath v. N. Y. Gold Exch., 38 How. Pr. 168; 7Abb. Pr. (n. s.) 251. » 92 Pa. St. 510. 108 GOVERNMENT AND MEMBERSHIP: BT-LAWS. § 92 consent. "It is manifest," said the court, "that the plaintiff ought not to have been allowed to recover under a by-law which had been repealed before he fell sick." In a case in New York,^ it was held that in these societies the rights of the members may be taken away by an alteration of the constitution without notice unless the constitution provides for it. In this case the court said: " The plaintiff was bound by these changes. The charter gave no right of action. The constitution and by-laws were liable to change. The changes were made! in the way pointed out by the con- stitution and laws. * * * No notice was required to be given to plaintiff. The by-laws provide for none, and they do provide for a change by resolution proposed one week before it could be passed. It was doubtless designed that this delay would operate to give notice to all persons interested. A notice to all the members would be a great burden." In the same case it was said that whatever con- tract there was between the parties arose under the charter, oonstitution and by-laws of the society. In Poultney v. Bachmann,* the distinction was made that the society, after the sickness of a member began, and his right to benefits became vested, could not amend or change its laws so as to affect that right. In this case the court says: " By the happening of the contingency provided for — the sickness — the plaintiff 's right to that sum — four dollars per week — •during his sickness or disability — became a vested one, of which he could not be deprived. The contract is to be interpreted like any other contract of insurance, in which, as a rule, is incorporated a clause giving either the insured or insurer the right to end the risk. It would certainly be a somewhat novel construction of the clause conferring such power of termination, to hold, that, after a loss has occurred to the insured, against which the agreement was to protect, • McCabe v. Father Matthew, etc., Soc, 24 Hun, 149. « 62 How. Pr. 466. 109 § 94 GOVERNMENT AND MEMBERSHIP: BY-LAWS. the payment of the sum stipulated for could be either re- duced or repudiated by the insurer. Yet this, as it seema to me, is the precise position assumed by the defendant. Upon his becoming sick, as has been before stated, the plaintiff 's right to four dollars per week during his Ulness became a vested one, and it would be most unreasonable and unconscientious so to construe the by-law giving the power of amendment, as to confer upon the members of the lodge the authority to deprive him of that to which he had thus become clearly entitled." ^ § 93. Construction of Same. — Like other by-laws, those relating to benefits must have a reasonable construction. Thus, it was held ^ that where the by-laws provided that a member who " became incapable of working, inconsequence of sickness or accident," should receive from the society a certain sum per week, the member by trying to resume work and working two days during the period of sickness did not debar himself from receiving benefits during the time, as it could not be said as a matter of law that he was not " incapable of working " within the meaning of the by- law. Provisions for benefits in case of " sickness " do not extend to a case of bodily injury not affecting the general health of the person injured.^ But insanity has been held to be sickness and disease.* § 94. Proceedings to Obtain Sick Benefits: Rights of Members to Resort to Civil Courts. — A meniber of a benefit society must, in applying for benefits under its by- 1 Pellazzino v. Germ. Cath. Soc, 16 Cln. L. Bui. 27; Gnndlach v. Ger- mania Mech. Assn., 4 Hun, 339; Bauer v. Sampson Lodge, 102 Ind. 262; Kent V. Quicksilver Mining Co., 78 N. T. 159. But see Fugure v. Society St. Joseph, 46 Vt. 862, and Torrey v. Baker, 1 AUen, 120. See post, §§ 94, 114. ^ GenestD. li'Union St. Joseph, 141 Mass. 417. ' Kelly 0. Ancient Order of Hibernians, 9 Daly, 289. * Burton v. Eyden, 8 Q. B. 295. 110 GOVERNMENT AND MEMBERSHIP: BY-LAWS. § 94 laws, follow the procedure therein prescribed. In a case in Georgia the Supreme Court of that State, in passing upon the question whether a member could bring an action for his benefits, said: ^ " Among the objects of the organi- zation of this benevolent association, it is evident that the mutual aid to be rendered to the members thereof by the observance of self-imposed duties and obligations was among the most important. It was to be a brotherhood of work- ingmen; governed, managed and controlled by its own membership, under its own laws, without extrinsic compul- sion. Its operations for the execution of its benevolent designs were to be internal, and by persons of its own ap- pointment ; provision was made to accomplish all the ends in view ; there was nothing in any of its laws prohibited by statute or constitution; hence, whosoever became a member could only avail himself of the rights to be enjoyed in that way and manner provided by its own rules." In an early case,^ the Supreme Court of Pennsylvania held in a similar case that, when the committee or tribunal created by the lodge or society had passed on the matter, the civil courts had no jurisdiction to inquire into the regularity of the pro- ceedings. The court said: " The matter here, however, depends not merely on presumption of assent to a by- law, but on the charter to which the plaintiff expressly as- sented at his initiation ; and he is consequently bound by everything done in accordance with it." In a very recent case,' the Supreme Court of ^Michigan held that if the by- law of a mutual benefit and co-operative insurance society was reasonable and valid, not oppressive nor against public policy, it forms part of the contract entered into between each member and his fellow-members constituting the so- 1 Harrington v. Workingmen's Benevolent, etc., 70 Ga. 340. - Black and Whltesnlith's Society B. Vandyke, 2 Whart. 309; 30 Am. Dec. 263. ' VanPoucker. Netherland, etc., Soc, 6 West. Eep. 132; 29 N. W. Eep. 863. Ill ■§ 94 GOVERNMENT AND MEMBERSHIP : BY-LAWS. ciety; and all are bound by its terms. It is reasonable that the sick committee of such a society should be invested with authority to determine whether a member, claiming to be sick, is entitled to sick benefits, and when such benefits should cease. And further that a party cau only recover sick benefits according to the terms prescribed in the by- laws ; and if they provide for a committee to determine the question for him, and he has referred it to a committee, he has made it a tribunal to determine the question, and the decision of such committee is final. In Maryland the Court ■of Appeals has held ^ that one by becoming a member " as- sented to be governed by the tribe and council according to "the regulations, it follows that he was bound by their applica- tion and construction in his own case. It is provided that the tribe shall determine matters of this kind, and the decision, on appeal, made final. These are private beneficial institu- tions operating on the members only, who for reasons of policy and convenience, affecting their welfare and, perhaps their existence, adopt laws for their government, to be administered by themselves, to which every person who joins them assents. They require the surrender of no right that a man may not waive, and are obligatory on him only so long as he chooses to recognize their authority. In the present instance the party appears to have been subject- ed to the general laws and by-laws according to the usual course, and if the tribunal of his own choice has decided against him he ought not to complain." In all the cases it has been held that the same principles govern as those applying to arbitrations, and when the prescribed forms have been observed without fraud and in good faith, the decision of the committee or society is final.'* If the ' Anacosta Tribe w.Murbach, 13 Md. 91; 71 Am. Dec. 625. s Sperry's Appeal (Pa.), 8 Cent. Rep. 215; 9 Atl. Rep. 478; McAlees v. Supreme Sitting, etc., (Pa.), 13 Atl. Rep. 755; 12 Cent. Rep. 415; Woolsey V. Odd-feUows, etc., 61 Iowa, 492; Harrison v. Hoyle, 24 Ohio St. 254; Toram v. Howard Benef . Soc, 4 Pa. St. 519 ; Osceola Tribe v. Scbmidt, 67 112 GOVERNMENT AND MEMBERSHIP: BY-LAWS. § 95 by-law is unequal or vexatious then the court will not be bound by it.' If the by-laws provide for no tribunal to test the right to benefits, the member may have an immedi- -ate right of action,^ and of course an action lies to enforce the award of the lodge or society tribunal. The courts lat- terly incline to adopt the rule that where a society agrees, in consideration of the payment of dues, to pay a certain sum as benefits during a member's iUness, it may not de- prive the member of his right to resort to the courts in the first instance,^ the theory being that " agreements to submit a matter to arb itration are valid when made after the ape- <;ific controversy has actually arisen, and not where made in advance, certainly not when the agreement provides that one of the interested parties shall be sole arbitrator. The weight of authority is very decidedly against the power of parties to bind themselves in advance that a controversy that may possibly arise shall be conclusively settled by an individual or a corporation." * § 95. £xpalsion of Members. — One of the most vital VERNMENT AND MEMBERSHIP : BY-LAWS. be observed in the exercise by a society of this power. At the beginning of the discussion we must remember that benefit societies have a dual existence : they are social and fraternal in their nature, yet provide for their members, or their beneficiaries, certain pecuniary benefits, consequently, while expulsion in the case of a member of a church or club, or fraternity purely social, might be well enough, if the proceedings were regular, the same offenses in the case of a member of a benefit society could not be punished by ex- pulsion having the consequences of a forfeiture of pecu- niaiy rights. This distinction will appear more clearly as we proceed with the discussion of the subject. § 96. Same Rules Apply to Incorporated and Unincor- porated Societies. — The same rules apply to voluntary,, unincorporated associations as to incorporated societies. Upon this subject the court in a Pennsylvania case^ says: ♦ ' These associations have some elements in common with corporations, joint stock companies and partnerships; such as association and being governed by regulations adopted by themselves for that purpose. * * * I have very little doubt, therefore, that the same rules of law and equity,, so far as regards the control of them and the adjudication of their reserved and inherent powers to regulate the con- duct and to expel their members, apply to them as to cor- porations and joint stock companies." ^ § 97. Power o£ Corporation to Expel Members when Charter is Silent: Grounds for Expulsion. — "When a corporation is duly organized," says the Supreme Court of Wisconsin,* " it has power to make by-laws and expel mem- 1 Leech v, Haxris, 2 Brewst. 571. 2 Gorman v. Russell, 14 Cal. 531; Loubat v. Leroy, 15 Abb. N. C. 1; Babb V. Reed, 5 Rawle, 158; 28 Am. Dec. 650; Otto v. Journeymen TaUor's, etc., Union (Cal.), 17 Pac. B. 217; Beaumont v. Meredith, 3 Ves. & B. 180; Llndley on Par. 56. * State V. Chamber of Commerce, 20 Wis. 71. 114 GOVERNMENT AND MEMBERSHIP: BY-LAWS. § 98 bers, though the charter is silent upon the subject. If the power is expressly granted in general terms, it is conferred to enable the corporation to accomplish the objects of ita creation, and is limited to such objects or purposes. It ap- pears to be well settled that where the charter of a corpo- ration is either silent upon the subject of expulsion, or grants the power in general terms, there are but three legal causes of disfranchisement." These three causes were stated by Lord Mansfield,^ and are again recited by the Supreme Court of Pennsylvania * as follows: " There is a tacit condition annexed to the franchise of a member, which, if he breaks, he may be disfranchised. The cases in which this inherent power maj be exercised are of three kinds:, 1. When an offense is committed, which has no im- mediate relation to a member's corporate duty, but is of so infamous a nature as renders him unfit for the society of honest men. Such are ihe offenses of perjury, forgery, etc. But before an expulsion is made for a cause of this kind it is necessary that there should be a previous convic- tion by a jury, according to the law of the land. 2. When the offense is against his duty as a corporator, and in that case he may be expelled on trial and conviction by the cor- poration. 3. The third is an offense of a mixed nature, against the member's duty as a corporator, and also indict- able by the law of the land." * § 98. English Rule as to Tolantary Associations. — In England, however, it has been held that in the absence of any provision in the constitution or by-laws of an incorpo- • Rex V. Town of Liverpool, 2 Burr. 732. ° Common-wealth v. St. Patrick's Benevolent Soc, 2 Binney, 441 ; 4 Am. Dec. 463. ^ People V. Medical Society, etc., 32 N. Y. 187; Dickenson v. Chamber of Commerce, etc., 29 Wis. 49; People v. Medical Society, 24 Barb. 577; Leech r. Harils, 2 Brewst. 571 ; Society v. Commonwealth, 62 Pa. St. 126; Lonbat v. Leroy, 16 Abb. N. C. 1. See post, § 104. 115 § 100 GOVERNMENT AND SfEMBERSHIP : BY-LAWS. rated voluntary association giving power of expulsion, there is no inherent power to expel a member, since it forms no part of the written contract by which the members are associated together.^ § 99. When no Power to Expel Exists. — This power to disfranchise or expel members is incident to every cor- poration or society, except where formed primarily or ex- clusively for the purpose of gain, in which latter case such power cannot be exercised unless expressly granted by char- ter.^ And where the corporation or society owns property, a member cannot be expelled or deprived of his interest in the stock and general funds unless this power is contained in the charter.^ § 100. Power to Expel Belongs to Body Generally: Cannot be Delegated. — The power of expulsion of mem- bers of a society, club or corporation belongs to the body at large,* and, in the absence of the clearest authority in the constitution and by-laws» cannot be delegated to a com- mittee or officer. Says one case: ' " The transfer from "the body of the society, where it properly belongs, to a small fraction of its members, of so large and dangerous a power as that of expulsion, must appear, if it be claimed 1 DawMns v. Antrobus, L. R. 17 Ch. D. 615; affirmed, 44 L. T. Kep. (m. s.) 557. 2 In re Long Island E. R. Co., 19 Wend. 37; 32 Am. Dec. 429; Evans «. Philadelphia Club, 60 Pa. St. 107. » Bagg's Case, 11 Co. 99; Davis «. Bank of England, 2 Bing. 393; Hopkinson «. Marquis of Exeter, L. R. 5 Eq. 63; State v. Tudor, 5 Day, 529; Roehler v. Mechanics' Aid Society, 22 Mich. 86; Evans v. Philadel- iphia Club, 50 Pa. St. 107; Society v. Commonwealth, 52 Pa. St. 125. See also note in 63 Am. Dec. 772 to Hies v. Bartlett, 3 Gray, 468. * Hassler v. Phila. Mus. Assn., 14 Phila. 233; Green v. African, etc., Society, 1 Serg. & R. 254; Commonwealth v. Pennsylvania Benef. Assn., 2 Serg. & R. 141; Med. & Surg. Soc. v. Weatherly, 75 Ala. 248; Gray v. Christian Soc, 137 Mass. 329; s. t. 50 Am. Rep. 310. 1 Hassler v. Phila. Mus. Assn., 14 Phila. 233. 116 GOVERNMENT AND MEMBERSHIP: BY-LAWS. § 101 to exist, by the plainest language. It cannot be established by inference, or presumption, for no such presumption is to be made in derogation of the rights of the whole body, nor is it to be supposed, unless it appears by the most express and unambiguous language, that the members of the society have consented to hold their rights and membership by so frail a tenure as the judgment of a small portion of their own num- ber." It has been held that the revision of membership lists by dropping certain names from the roll is equivalent to the expulsion of tha members whose names are thus stricken off. " The revision," says the Supreme Court of Alabama,^ " of the roll of members must, in our judgment, be the act of the society itself, transacted, as any other order of corporate business, by the recorded vote of the body in its corporate capacity, showing the fact that the roll was revised by at least a majority of the members present and constituting a quorum, voting in the affirm- ative," and further, "the clerical work of revision, is, in one sense, the act of the secretary, inasmuch as the duty of striking off names and the preparation of a revised list are devolved upon him. But the corporate act of re- vision, which is a legal ratification of the act of the secre- tary, is an order of business judicial in its character, and of great importance in its nature and results, and for these reasons, as we have said, must be transacted by a vote of the members in their corporate capacity." ^ § 101. Procedure for Cxpnlslon : Notice. — All pro- ceedings in the expulsion of members must be in substantial 1 Medical & Suigical Soc. v. Weatherly, 75 Ala. 218. ' Gray V. Cliristian Society, 137 Mass. 329; «. e. 60 Am. Rep. 310; State ex rel. Sibley c. Carteret Club, 40 N. J. L. 295 ; Delacy v. Nease River Nayigation Co., 1 Hawks, 274; 9 -Am. Dec. 636; People v. American In- Btitote, 44 How. Fr. 468; Lonbat v. Leroy, 40 Htin, 546; People c. Mechanics' Aid Soc, 22 Mich. 86; People v. fire Dept., etc., 31 Mich. 458. 117 § 101 GOVERNMENT AND MEMBERSHIP: BY-LAWS. accordance with Tae letter of its rules.^ While it has been held, that if the by-laws of the society provide for no notice, the member is not entitled to any notice, no property right being involved; ^ yet even in such case the proceed- ings must be had at a regular meeting for of only such is the member supposed to have knowledge.'' It has often, however, been held that by-laws which provide for expul- sion of a member without notice are void as being unreason- able.* Expulsion, if a property right is involved, must always be on notice, and, if no other method of notice is prescribed by the by-laws, it must be served personally and failure on the part of the member to give notice of a change of address as required by the laws of the society will not change the rule.' Mere posting in the corporate premises is not a sufficient notice.* Service of notice is not excused by a change of residence.' This notice must contain a statement of the charges against the member.* The mem- 1 Labonchere v. Earl of Wharncliffe, L. R. ISCh.Div. 346; Common- wealth V. German Society, 15 Pa. St. 251; Wa61itel v. Noah Widows' and Orphans', etc., 84 N. T. 28 ; People v. Am. Institute, 44 How. Pr. 468; Foster ». Harrison, cited 72 Law Times, 185; 15 Abb. N. C. 45; Eoehlero- Mechanics' Aid Soc, 22 Mich. 87; White v. Brownell, 4 Abb. Pr. (n. s.) 162; Med. & Surg. Soc. v. Weatherly, 75 Ala. 248. ' Manning v. San Antonio Club, 63 Tex. 166; s. c. 51 Am. Eep. 639; McDonald v. Boss-Lewin, 29 Hun, 87; People v. St. Franciscus, etc., 24 How. Pr. 216. ' Medical & Surgical Soc. v. Weatherly, 75 Ala. 248. * People V. Fire Dept., 31 Mich. 458; Fritz v. Muck, 62 How. Pr. 72; Erd V. Bavarian, etc., Assn. (Mich.) , 34 N. W. Rep. 555; 11 W. Eep. 171. 1 Wachtel v. Noah Widows' Orphans', etc., 84 N. X. 28; People v. Medical Society, 32 N. Y. 187; Commonwealth ». Penn. Ben. Assn., etc., 2 Serg. & E. 141; Tunis v. Wylie, 1 C. & K. 257; Downing v. St. Col- umba's, etc., 10 Daly, 262; Pulford v. Fire Department, 31 Mich. 458; Commonwealth v. German Society, 15 Pa. St. 251 ; People v. Musical, etc., Union, 1 N. T. S. E.' 770: 47 Hun, 273. «• State ex rel. Sibley v. Carteret Club, 40 N. J. L. 295. ' Wachtel v. Noah Widows', etc., Soc, 84 N. Y. 28; Harmsteadv. Washington Fire Co., 8 Phila. 331. " Murdock's Case, 7 Pick. 303; Murdock v. Phillips' Acad., 12 Pick. 244; People t». Musical Mut. Protective Union, 47 Hun, 273. 118 (JOVERNMENT AND MEMBERSHIP : BY-LAWS. § 102 ber need not request a hearing,* nor does he waive notice by Appearing and entering on his defense ;^ nor is notice waived by the member appearing at the time fixed for the hearing, and denying the right of the directors to proceed against him and refusing to answer the charges.^ In Fisher v. Keane,* it was held that in proceedings to expel a member the committee or society is a gMOsi-judicial tribunal and are bound in proceeding under their rules against a member for alleged misconduct, to act according to the ordinary principles of justice and are not to convict him of an offense warranting his expulsion without giving him due notice of the intention to proceed against him and affording him an opportunity of defending or palliating his conduct.* The power to expel must be exercised bona fide and not ca- priciously or arbitrarily, or maliciously.* § 102. Procedure Continued: Gbarges : Trial. — If the by-laws so require, the charges against a member must be in writing and signed as required by the accuser and the notice must specify the time of hearing,' but by appearing generally the member waives objections as to notice and the regularity of the appointment of the tribunal.* The asso- 1 Loubat o. Leroy, 40 Hnn, 646 ; Delacy v. Neuse Nav. Co., 1 Hawks 146 GOVERNMENT AND MEMBERSHIP: BY-LAWS. § 116 or if no property right is involved, the courts will not in- terfere ; if, however, the rules are illegal or unreasonable, or the proceedings irregular the court will enjoin the pro- cedure, or any interference with the rights of the member, or if he has been wrongfully expelled, restore him by man- damus, provided some property right attaches to member- ship. 4. In regard to the jurisdiction of superior over in- ferior bodies in an order, or society, the courts will not enforce a forfeiture' of tfae property rights of the latter, but may even interfere to prevent it. In such cases consid- erations of public policy will always prevail. In mere mat- ters of discipline, where no property right is involved, the decision of the superior organization, if regularly rendered and not inherently unjust, will be regarded as final. 5. Where subordinate organizations have a conventional as well as a State charter either may be forfeited or taken away without affecting the other. But in no case can a State charter be impaired or taken away except by direct action of the State. Forfeiture of the conventional charter of a society incorporated by the State will not divest its property, nor can the property be affected by a secession of part of its members. Even if unincorporated, the ma- jority of a society have generally the right to cut loose from a superior governing body, and the minority have no redress if the property is used for the general pui'poses for which it was acquired. 6. In regard to personal liability of the member for the debts or obligations of the society, the rule is that liabilities can only be fastened on him by reason of his own acts, or by reason of the acts of his agents ; and the agency must be made out of the person who relies on it for none is im- plied by the mere fact of association. 147 CHAPTER IV. OFFICERS AND AGENTS. 117. Associations and Corporations Act through Agents. 118. Subordinate Lodges both Principals and Agents. 119. General Principles of Law of Agency. 120. When General Engagements of Clubs are Bjnding on Their Members. 121. Officers and Committees are Agents. 122. Presumptions of Law concerning Members. 123. When Judicial Powers cannot be Conferred, 124. Power of Amotion of Officers, Who Has. 125. Authority of Officers and Agents. 126. Agents of Corporations. 127. Officers of Corporations are Special Agents. 128. Agent Contracting in Name of Irresponsible Principal. 129. Agent Acting in Excess of His Authority. 130. Charter or Articles of Association Fountain of Authority of Offi- cers, Agents and Committees. 131. Fiduciary Relation of Officers and Directors. 132. Discretionary Powers cannot be Delegated. 133. Officers and Agents of Benefit Societies. 134. Powers and Authority of Directors. 133. Formalities to be Observed by Agents. 136. Distinction as to Matters Eelating to Internal Management. 137. Execution of Insurance Contracts. 138. Acts and Meetings .of Directors and Committees. 139. Record of Proceedings of Meetings of Directors Need not be Kept. 140. Powers of President. 141. Of Vice-President. 142. Of Secretary. 143. Of Treasurer. 144. Dual Capacity of Subordinate Lodges of an Order. 145. Officers and Committees of Benefit Societies are Special Agents. 146. Benefit Societies in Law are Mutual Life Insurance Societies. 147. Difference Between Powers of Agents of Stock and Those of Mu- tual Companies. 148. Authority of Subordinate Lodges When Acting for Grand and Supreme Lodges. 148 OFFICEES AND AGENTS. § 117 § 149. Have Snbordiiiate Lodges the Characteristics of Ordinary Life Insurance Agents? 150. To what Extent can Local or Subordinate Lodges Bind the Su- perior Body? 151. General Boles of Agency Apply to Agents of all Kinds of Com- panies. 162. Authority of LUe Insurance Agents. 153. The Modern Doctrine. 154. The Contrary View. 155. The General Rule Unimpaired. 166. Dealings with Agents of Mutual Companies. 157. Membership In Mutu^ Benefit Societies. 158. The Correct Doctrine as to the Authority of Insurance Agents stated in Certain Cases. 169. How far Knowledge of Agent binds Principal. 160. Notice to Agent. § 117. Associations and Corporations Act Tbrongh Agents. — It stands to reason that all associations of indi- viduals, whether endowed with corporate powers and priv- ileges, or unincorporated, must of necessity do most acts through the intervention of agents, for the members can act as a body upon comparatively few occasions. The lia^ bility of the associated persons, either as an association or individuals, must usually, if not always, be determined by an application of the general principles of the law of agency, modified sometimes by the circumstances of each particu- lai" case.^ Benefit societies have certain peculiar and in- dividual characteristics : in some cases their undertakings resemble the contracts of life insurance companies, at other times their engagements are only such as arise in the ordi- nary business of clubs or associations for social or commer- cial objects. The one class of contracts are of insurance and are similar in many respects to those of ordinary life insurance concerns, they are consequent to and generally arise out of the membership and as incident thereto ; the second class may be made up of all other undertakings and 1 AnU, § 49. 149 § 120 OFFICEUS AND AGfcNTS. agreements and are not different from those of indiyidaals or of other corporations. § 118. Subordinate ]le stated, the principal holds out the agent to the pubhc, as having unlimited authority as to a particular act, subject or purchase. In each case, therefore, the same general principle applies." The same author continues: ^ " But where the agency is not held out by the principal, by any acts or declarations, or implica- tions, to be general in regard to the particular act or busi- ness, it must from necessity be construed according to its real nature and extent ; and the other party must act at his own peril, and is bound to inquire into the nature and ex- tent of the authority actually conferred." § 126. Agents of Corporations. — The rule in regard to corporations is not different from that applied to persons : " The powers possessed by the various agents of a corpo- ration may be Umited by the terms of their appointment, or by custom ; but the ultimate source of their authority is » Story on Ag., § 133. 155 § 127 OFFICE FiS AND AGENTS. always the agreement of the shareholders expressed in their charter or articles of association. It follows, therefore, that if an act is in excess of the chartered purposes of a cor- poration, it will always be outside of the powers delegated to the company's agents, as well as in excess of the corpo- rate powers which the company is authorized by law to exercise. The general rule, that a contract made by an agent of a corporation in excess of his powers does not bind the company, applies with peculiar force to a contract which is in excess of the charter itself. For a person deal- ing with a corporation must, at his peril, take notice of the terms of its charter, and of the fact that acts in excess of the charter are necessarily in excess of the authority of the agent performing them. * * * It is a settled rule, that a person who deals with a corporation must, at hia peril, take notice of its charter or articles of association. It follows, therefore, that so far as the authority of an agent of a corporation is defined by its charter or articles of association, the scope of the agent's powers must always be considered as disclosed." ^ § 127. Officers of Corporation are Special Agents. — Officers of a corporation are special and not general agents; they have no power to bind a corporation except within the limits prescribed by the charter and by-laws. The prin- ciple, that persons dealing with the officers of a corporation are charged with notice of the authority conferred upon them, and of the limitations and restrictions upon such authority contained in the charter is too weU established to require to be supported by a citation of authorities.^ But this rule is qualified by the statement that if a corporation either elects an officer or appoints an agent of a class, which, 1 Morawetz on Corp., §§ 580, 591 ; post, § 130. * Adriance v. Roome, 52 Barb. 399 ; Alexander v. Cauldwell, 83 N. IT. 480; De Bost v. Albert Palmer Co., 35 Hun, 386; Rice v. Peninsula Club, 62 Mich. 87. 156 OFFICERS AND AGENTS. § 128 according to general custom, have certain functions and powers, it will be bound by his acts within the scope of authority usually exercised by such class, although his pow- ers are limited by the by-laws.^ The scope of the agent's or officer's authority may be established by " proofs of the course of business between the parties themselves ; by the usages and practice which the company has permitted to grow up in its business, and by the knowledge which the board, charged with the duty of controlling and conducting the transactions and property of the corporation, had, or must be presumed to have had, of the acts and doings of its subordinates in and about the affairs of the corporation." * § 128. Agent Contracting in Name of Irresponsible Principal. — Generally, an agent, contracting in the name of a foreign or irresponsible principal, or one incapable of •contracting, is held personally because the law presumes that he intended to bind himself or that credit was given to him. So, if an agent contracts in the name of a voluntary association having no legal entity, he is bound, although all the members who have consented to the act or ratified it afterwards are also bound.^ "But," as Mr. Story in his commentaries on agency* says, " although it is thus true that persons, contracting as agents, are ordinarily held per- sonally responsible, where there is no other responsible ' Minor v. Mechanics' Bank, 1 Pet. 46; Fay «. Noble, 12 Cush. 1; Mer- -chants' Banku. State Bank, 10 Wall. 604; Commercial Ins. Co. v. Union Ins. Co., 19 How. 318; Smith v. Smith, 62 III. 493; Union Mutual Life Ins. Co. V. White, 106 HI. 67. 2 Mining Co. v. Anglo Californian Bank, 104 U. S. 192; Lee v. Pitts- burg Coal, etc., Co., 66 How. Pr. 376; Phillips v. Campbell, 43 N. Y. 271; Morawetz on Corp., § 509. ' Doubleday v. Muskett, 7 Bmg. 110; Blakely v. Bennecke, 59 Mo. 195; Heath v. Goslin, 80 Mo. 310; Horsley v. Bell, 1 Brown Ch. 101; Lewis v. Tilton, 64 la. 220; 62 Am. Eep. 436; Burls v. Smith, 7 Bing. 704; Ridgley c. Dobson, 3 Watts & S. 118; CuUen «.Duke of Queensbuiy, 1 Brown Ch. 101; Gray v. Eaper, L. E. 1 C. P. 694. * § 287. 157 § 129 OFFICERS AND AGENTS. principal to whom resort can be had ; yet, the doctrine is not without some qualifications and exceptions, as indeed the words, * ordinarily held,' would lead one naturally to infer. For, independent of the cases already suggested, where the contract is, or may be treated as a nullity, on account of its inherent infirmity or defective mode of exe- cution, other cases may exist, in which it is well known to- both of the contracting parties, that there exists no author- ity in the agent to bind other persons for whom he is acting, or that there is no other responsible principal ; and yet, the other contracting party may be content to deal with the agent, not upon his personal credit, or personal responsi- bility, but in the perfect faith and confidence that such con- •tracting party will be repaid and indemnified by the persons who feel the same interest in the subject-matter of the con- tract, even though there may be no legal obligation in the case." The question generally is, "to whom is the credit knowingly given, according to the understanding of both par- ties? " " The law in all these cases, pronounces the same decision ; that he to whom the credit is knowingly and ex- clusively given, is the proper person who incurs liability whether he be the principal or the agent." ^ § 129. Agent Acting In Excess of his Authority. — Whenever an agent who contracts for another party, whether a corporation or natural person, exceeds his author- ity, he is personally liable, unless his acts be afterwards adopted or ratified by the supposed principal ; ^ and he may be sued either for breach of warranty or deceit,^ but the agent will not be liable if the other contracting party have- the same opportunities for knowledge as the agent.* 1 story on Ag., §288; Wliart. on Ag., §§ 507, 508, 509; ante, § 115. 2 Ang. & Ames on Corp., § 303; Wliart. on Ag., § 524. » Whart. on Ag., § 524. * Whart. on Ag., § 531. 158 ' OFFICERS AND AGENTS. § 131 § 130. Charter or Articles of Association Fountain of Authority of OfBcers, Agents and Committees. — The affairs of all corporations and societies must be managed by agents through whom all their business is transacted, and, whether these agents be called officers, directors or com- mittees, they are, nevertheless, agents, and the general rules of agency apply. The articles of association, or charter, is the fountain of authority defining and limiting their duties and powers, and beyond these definite powers, they cannot go, although in th^ case of executed contracts, the company is, upon principles analogous to those of estoppel, sometimes debarred from asserting this defense, when this authority has been exceeded. The society is bound by acts done within the apparent scope of the agent's authority and such as are usually performed by agents of a similar class in that particular course of business. ^ It follows that officers, directors and committees may do all such acts as are within the scope of their apparent authority and usually incident to their offices. This rule, however, must be taken with some degree of allowance, for much will depend upon the special circumstances of each case.^ § 131. Fiduciary Relation of OfiScers and Directors. — The general rules must also be held to apply, in all cases, that, while directors and other officers have a wide range of discretionary authority, each one sustains a fiduciary relation to the members of the organization, and the utmost good faith is required of him. " He falls, therefore, within the great rule by which equity requires that confidence shall not be abused by the party in whom it is reposed, and which it enforces by imposing a disability, either partial or complete, upon the party intrusted to deal, on his own behalf, in respect to any matter involved in such confidence." * The 1 Morawetz on Corp., § 587 et seq. 2 Ante, § 126. ' Hoyle V. Plattsburg, etc., E. K. Co., 54 N. Y. 314; 13 Am. Rep. 595f 159 § 132 OFFICERS AND AGENTS. powers conferred upon an agent must be exercised to advance the interests of the principal, and for no other purpose. He must not use either the assets or the credit of the principal, or any of the powers of his own office, except to advance the interests of the company irrespective of his own advantages •or desires.^ And it is the duty of the trustees to resist all invalid claims and protect its members and the funds in their hands.^ So, the trustees of a benefit society cannot vote themselves back pay.^ § 132. Discretionary Powers cannot be Delegated. — It is also the rule that discretionary powers, if conferred upon the agent, cannot be delegated.* But this rule also . Bear River, etc., 20 Cal. 602; St. Nicholas Ins. Co. ». Howe, 7 Bosw. 450. 2 Chicago, B. & Q. R. Co. v. Coleman, 18 111. 297. » Northern Central R. Co. v. Bastian, 16 Md. 494. * Martin v. Webb, 110 V. S. 7; Dougherty v. Hunter, 64 Pa. St. 380;. Olcott V. Tioga R. R. Co., 40 Barb. 179. 5 Farmers' Bank «. McKee, 2 Pa. St. 318; Bacon v. Mississippi Ins. Co., 31 Miss. 116. « Colman v. West Va. Oil Co., 26 W. Va. 148; Savings Bank v. Ben- ton, 2 Mete. (Ky.) 240; Oakley v. Workingmen's Ben. SoC, 2 Hilt, 487. ' Stokes V. N. J. Pottery Co., 46 N. J. L. 237. 8 Bliss V. Kaweah C. & I. Co., 65 Cal. 502. 9 Walworth Co. Bank v. Farmers', etc., Co., 14 Wis. 325. w Bright V. Metaire Cem. Assn., 33 La. Ann. 58. " Priest V. Citizens' Ins. Co., 3 Allen, 602; McEvers v. Lawrence, 168 OFFICERS AND AGENTS. § 141 is no objection to the president acting as secretary of a meeting of the board of directors if so desired.^ § 141. Of Vice-President. — Ia regard to the duties of vice-president it has been said :^ " As a general rule, in the absence of the president, or where a vacancy occurs in the office, the vice-president may act in his stead and per- form the duties which devolve upon the president. And such being the case, it must be held that, as Rose refused to act as president of the'company, Brough, the vice-presi- dent, could not only act as president, but it became his duty to so act in the transaction of the business of the company. Nor does it matter that the act under which the body was organized does not enumerate a vice-president a& one of the officers of the company ; but after providing that there shaU be a president and other officers named, it authorizes the company to create other officers. And this company, by their by-laws, declared there should be a vice-president, and imposed the duty on him of assisting the president in the performance of such duties as he might require. In organizing such a body, such an office is, if not essential, usually created, and this organization, having provided for and elected such an officer, we must hold that he may perform the duties imposed upon the president in. in the same cases and under the same circumstances that Buch an o^cer may act when the office is created by the charter of the company. We see no objection to the deed because it was signed by Brough, as there was no president of the company." The second vice-president, who pre- sided at a meeting of a society, it was held,^ could after th& adjournment of the meeting, appoint a committee of inves- HofE. Ch. 172; Brewer ». Chelsea F. Ins. Co., 14 Gray, 203. But see posty § 429. ' Bndd V. Walla Walla, etc., Co., 2 Wash. T. 347. 2 Smith V. Smith et al., 62 111. 496. » Burton v. St. George's Society, 28 Mich. 261. 169 ■§ 142 OFFICERS AND AGENTS. tigation, called for by a resolution adopted at such meet- ing, and the first vice-president could fill the vacancies in the committee caused by the declination of certain ■of the appointees. As in the case of other officers, the charter must be looked to for the enumeration of the powers of the vice-president and if the constitution is-silent, then the hy-laws or the custom of the society or of similar societies. § 142. Of Secretary. — The secretary of a corporation is its officer to keep its records, books and seal and to act generally under the directions of the directors and presi- dent. His powers and duties are usually prescribed by the by-laws, but if they are not he has the powers ordinarily ex- ercised by the corresponding officer of companies in the same line of business, or those which the customs and habits -of his company have conferred upon him. There is no rea- son why the secretary of an insurance company or benefit society should have any other or different powers than those of the corresponding officer of other organizations, or his authority be determined by any different rules. The sec- retary of the corporation is the proper person to have pos- session of, and prove, the books of the company; ^ and the directors are presumed to have control over him ; ^ he can make minutes of a meeting of the directors after the meet- ing has been held and they will relate back to the time of the transaction.^ He may impose fines on members for non-payment of contributions, if it be so provided by the by-laws,* but he cannot affix the corporate seal to a com- pany obligation upon the consent of directors given as they are met separately on the street, if the law of the body or statutes require a formal meeting.* The secretary of a cor- 1 Sm^th V. Natchez Steamboat Co., 1 How. (Misa.) 479. 2 Elmes V. Ogle, 2 Bng. L. & Bq. 379 ; 15 Jur. 180. ' Commercial Bank, etc.,D. Bonner, 13 Smed. & M. GiS. * Parker v. Batcher, L. R. 3 Eq. Cas. 762. ■5 D'Arcy v. Tamar, etc., B. Co., L. K. 2 Exch. 158. 170 OFFICERS AND AGENTS. § 143 poration remains, like other officers, in office until a suc- «es~or is chosen.^ The statement of the secretary of a mutual benefit association to the insured 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 not out of the scope of his duties, but binds the com- pany.^ A deed, though not attested by him, will be valid if the charter does not require such attestation, although it may be (unknown to the grantees) required by the by-laws.* Unless there is some provision in the charter of a society for a single secretary, the society may direct any of its officers or agents to perform any of the appropriate duties of the secretary, and in such case such agent so designated is made secretary for that purpose.* § 143. Of Treasurer. — The treasurer of a corporation is its officer charged by law with the custody of its funds and responsible for their safe keeping. So, where the by- laws provided that the treasurer should have custody of the moneys of a corporation and give bond for their safe keeping, it was held ^ that the directors could not lawfully deprive the corporation of the benefit of this responsibility by depositing the funds with others, or causing such dispo- sition to be made, and that they might be restrained by in- junction from so doing at the suit of any stockholder, a proper case being made. It has been said * that a corpora- tion by conferring upon a person the appointment of treasurer, holds him out to the world as its proper agent to receive funds paid to it ; and such officer is the only proper person to whom, when payment is made, notice of the pur- > South Bay, etc., v. Gray, 30 Me. 547. * Jones V. National Mut. Ben. Assn. (Ky.) 2 S. W. Eep. 4i7. 3 Smith V. Smith, 62 111. 496. ' Peck V. New London, etc., Ins. Co., 22 Conn. 575. « Pearson v. Tower, 55 N. H. 215. ■* N. E. Car Spring Co. v. Union Indian Rubber Co., 4 Blatchf. 1. 171 § 143 OFFICERS AND AGENTS. pose to which the payment is to be applied should be given. The treasurer of a corporation must keep its moneys dis- tinct from his own, unless it is otherwise agreed, and pay any balance' due on demand,^ and he only has power to bind the company by acts in the usual course of business, for unusual acts some special authority must be shown; ^ he can- not sell or assign, without such special authority, the se- curities of his company.^ In a ease * where the treasurer purchased a claim against the company, it was held that he could not maintain a suit upon it against the corporation,, because such purchase extinguished the debt. But upon, principle he could recover what money he advanced to buy the claim, because he was acting as a trustee for its benefit and it should repay his advances. The treasurer of a vol- untary association will be directed to account for moneys in his hands and pay over according to the interest of the as- sociation.^ When by a resolution of an association, the treasurer was directed under certain contingencies to re- turn to each member the amount contributed by him to the common fund, it was held that he was liable to an action brought against him by a member to recover his share, the agreed contingency having occurred.* So, if an unincorpo- rated body, through its treasurer, has received on deposit, certain money, a suit by the owner will lie against the treas- urer in his individual capacity to recover such money ; ' but it has also been held,* that no action can be maintained by the treasurer of an unincorporated association against one I' Second Ave. R. R. Co. v. Coleman, 24 Barb. 300. 2 Stark Bank v. V. S. Pottery Co., 34 Vt. 144; Dedham Inst., etc., «. Slack, 6 Cnsh. 408. » Jackson v. Campbell, 5 Wend. 572. * Hill V. Frazier, 22 Pa. St. 320. 5 Penfleld v. Skinner, 11 Vt. 297; Piggott v. Thompson, 3 Bos. & Pul. 146. « Koehler v. Brown, 2 Daly, 78. ' Bennett ». "Wheeler, 12 La. Ann. 763. « Ewing V. Medlock, 5 Port. (Ala.) 82. 172 OFFICERS AND AGENTS. § 144 upon his promise in writing to pay money — the same being payable to the " treasurer " of such association alone. In that case the court said: "To maintain that the plaintiff has a right to the action would be to put him upon the same ground he would occupy, if the association had been incorpo- rated, and made capable by its charter, of suing in the name ■of whoever might be the treasurer of the club, upon instru- ments made payable to the treasui'er. Such a capacity to maintain an action csua. be conferred by a charter only. If the money had been payable to the plaintiff By his indi- Tidual name, the right to the action would belong to him, and the description of him as treasurer of the club would not affect the right. The only effect the description would have, would be to make him a trustee for the members ■of the association. If the treasurer of the club could maintain the action, the right to the action might belong to different individuals at different times. The club may re- move from office a person who .was the treasurer when such a promise was made, and appoint a successor. In such a case the right which once belonged to one person as treasurer, would be exercised by another, without an as- signment from him who was first entitled; for an assign- ment would be without effect, as the promise is made to no one individually." § 144. Dual Capacity of Subordinate Ijodgres of an Order. — We have seen ^ that benefit societies generally have a complex organization ; first are the local and subor- dinate lodges under the control of a grand lodge, next is this grand lodge made up of representatives from the local lodges, and lastly may be a supreme lodge composed of delegates from the grand lodges. The certificate or policy ■of insm'ance is issued by the supreme or grand lodge to the member through the local lodges, making the lat^r an ^ Ante, § 11 et seq. 173 § 145 OFFICERS AND AGENTS. agent for this purpose ; and then there may be a collateral benefit to be paid by the local lodge in case of sickness, in the contract for payment of which the local lodge is a prin- cipal. The contract in the former case is the constitution and by-laws of the granld or supreme lodge, in the latter the constitution and by-laws of the' local lodge, which usually, however, refer to the constitutions and by-laws of the grand and supreme lodges and make them also a part of the agree- ment. To these contracts the member assents when he becomes ^ch and consequently is presumed to know th6ir terms.^ The subordinate lodges, therefore, and sometimes the grand lodges, are principals in certain transactions and agents in others, and so are governed by different rules as they act in one capacity or the other. § 145. Offlcers and Committees of Benefit Societies- are Special Agents. — The affairs of the constituent parts of a benefit society, as local, grand and supreme lodges, are managed by officers, corresponding to president, secretary, treasurer, etc., the same as in other associations or corpo- rations, and by standing, or regular, committees. The latter are generally provided for in the constitution, articles. of association and by-laws, and have charge of certain matters, as finance, appeals from subordinate lodges or other special branches of the business. They are like directors in many respects, and the members of each committee act together as one body upon the questions coming before them. They are special agents, ^hose powers ^nd duties are prescribed by the fundamental law of the organization, but on principle can perform all things within the usual and ordinary scope of their employment. The general rules of agency apply to them and also the principles which > Hellenberg v. District No. 1, 94 N. Y. 580; St. Patrick's Soc. ». McVey, 92 Pa. St. 510; Dolan v. Court Good Samaritan, 128 Mass. 439; Coleman v. Supreme Lodge, etc., 18 Mo. App. 189; Leech v. Harris, 2 Brewst. 571. 174 OFFICEKS AND AGENTS. § 14T determine the authority of boards of directors. There may also be special committees, created at any time for special purposes, or to do certain things, in which case they will be authorized to employ such means as are necessary and usual to accomplish the objects of their ap- pointment. The authority of many of these committees is so extensive as to really constitute them general agents in particular directions and bind their principals by whatever they do relating to such matters. § 146. Benefit Societies in liaw are Mutual Ijife Insur- ance Companies. — The disposition of the courts has been to hold that benofit societies paying a specified sum to the beneficiaries of a deceased member are to be treated as mutual life assurance organizations. The Supreme Court of Wiscon- sin in a case involving the liability of a benevolent mutual aid society (or a death loss, ^ said: " We suppose the company is subject to the application of those legal principles appli- cable to other mutual life insurance companies." In this case the defendant was the incorporated superior, governing a number of subordinate lodges of a social and benevolent organization, known as the •' Order of Hermann's Sons." The Supreme Court of Maine, in a case where the benefit promised by a Masonic relief association was in question, said: ^ " If the prevalent purpose and nature of an associa- tion, of whatever name, be that of insurance, the benevolent or charitable results to its beneficiaries would not change its legal character. Andthat this association, et id omne genus are mutual life insurance companies, we entertain no doubt whatever. * § 147. Difference between Powers of Agents of Stock and tbose of Mutual Insurance Companies. — A distinc- 1 Erdmann v. Mutual Ins. Co., etc., 44 Wis. 376. ' Bolton V. Bolton, 73 Me. 299. » Ante, § 52. 175 ^ 147 OFFICERS AND AGENTS. tion has been sought to be made between agents of stock and those of mutual companies, and generally it may be eaid that the representatives of the former have greater powers in settling the terms of the contract and in waiving compliance with its conditions than have the agents of mutual companies where the by-laws enter into the contract and prescribe that the stipulations shall be the same in all policies and shall regulate alike the rights of all. In Massa- chusetts, New Jersey and Ehode Island, the courts have ruled strictly on the power of the officers and agents of mutual companies to depart from the directions and regu- lations of their charters and by-laws, interpreted in the light •of the purposes for which these companies were established, but these views have not met with favor in other States, where a more liberal construction has been adopted and the differences between stock and mutual companies have been looked upon as more nominal than real. In the first men- tioned States the safety of the companies has been the chief consideration, in the latter the protection and safety of the public. The Massachusetts doctrine may be illustrated by a few extracts. In one case ^ the by-laws of the company pro- vided that insurance subsequently obtained without the written consent of the president should avoid the policy and that the by-laws should in no case be altered except by a vote of two-thirds of the members of the company. In this case subsequent insurance was obtained with the ■oral consent of the president and the court held that the policy was avoided. It said: "It is clear, upon the facts in this case, that the policy was annulled under the fifteenth article of the by-laws, by reason of the subsequent insur- ance obtained by Stone and Perry on the property, without the assent of the president of the corporation in writing ; unless the waiver of such written assent by the president, ' Hale «, Mechanics' Mutual F. Ins. Co., 6 Gray, 169; 66 Am. Dec. 410. 176 OFFICERS AND AGENTS. § 147 and his verbal consent to such subsequent insurance, as found by the jury, operate to set aside this proyision in the by-laws as to this particular policy and render the contract valid, notwithstanding by its express terms, as well as by the clause in the by-laws, it would be otherwise void. But the difficulty in maintaining the plaintiff's position on this part of the case is, not only that it attempts to substitute for the written agreement of the parties a verbal contract, but that there is an entire absence of any authority on the part of the president to make such waiver, or give such verbal assent. He was an agent, with powers strictly lim- ited and defined, and could not act so as to bind the defend- iints beyond the scope of his authority.^ By article fifteen ■of the by-laws, his power to assent to subsequent insur- ance was expressly confined to giving such assent in writing. In order to guard against the danger of over insurance, the oorporation might well require that any assent on their part to further insurance on property insured by them should be given by the deliberate and well considered act of their president in writing and not left to the vagueness and un- •certainty of parol proof. The whole extent and limit of the president's authority in this respect were set forth in the by-laws attached to the policy in the present case and, as the evidence shows, were fully known to the assured." ^ In a subsequent case ' the same court held that in matters that did not relate to the substance of the contract, but only to the remedy, the requirements of the by-laws could be waived by the officers of the company. This doctrine, that officers of a mutual company cannot waive the by-laws of the company, has been approved in other cases on the ground that if the officers have discretionary powers as to » Story on Ag.. §§ 127, 133; Salem Bank v. Gloucester Bank, 17 Mass. 29; 9 Am. Dec. ill. 2 Worcester Bank v. Hartford Fire Ins. Co., 11 Cush. 265; 59 Am. Dec. 145; Lee v. Howard Fire Ins. Co., 3 Gray, 584. " Brewer v. Chelsea, etc., Ins. Co., 14 Gray, 209. 12 177 § 148 OFFICERS AND AGENTS the terms of the contract the principle of mutuality would be completely abrogated.^ Other courts have inclined to the view that there is no difference between agents of mu- tual and those of stock companies, especially in soliciting applications. As was said in one case:* "Incorporated companies, whose business is necessarily conducted alto- gether by agents, should be required at their peril to see to it that the officers and agents whom they employ, not only know what their powers and duties are, but that they do not habitually, and as a part of their system of business, trans- cend their powers. How else are third persons to deal with them with any degree of safety? " ' § 148. Authority of Subordinate Lodges when Actings for Grand or Supreme Lodges. — That subordinate lodges are in many transactions agents of the superior, grand or supreme lodges is too clear for argument; the courts have often acted on this assumption.* In the case first cited the controversy was over a death benefit promised by the society and it was claim ed by the plaintiff that the local lodge had waived the requirement of prompt payment of an assessment. The court said:' "The constitution and by-laws certainly contain the contract which was entered into by the parties. The grove surely acts for and repre- sents the defendant in making the contract with the mem- ber unless we adopt as correct the idea or conclusion resulting > Evans v. Trimountain M. F. Ins. Co., 9 Allen, 329; Behler v. Ger- man, etc., Ins. Co., 68 Ind. 354; Westchester, etc., Ins. Co. v. Earle, 33- Mich. 150; Baxter v. Chelsea M. F. Ins. Co., 1 Allen, 294; Belleville M. Ins. Co. «. Van Winkle, 1 Beas. (N. J.) 333; Wilson v. Conway M.F.Ins. Co., 4 E. I. 141. s Conover v. Mutual Ins. Co., 1 Comst. 290. ' Post, § 153. * Schunck V. Gegenzeiter, 44 Wis. 369; Erdmann v. Mutual Ins. Cc^ etc., 44 Wis. 376; Scheu ». Grand Lodge, etc., 17 Fed. Rep. 214; Bar- baro ». Occidental Grove, etc., 4 Mo. App. 429. » Schunck v. Gegenzeiter, etc., supra. 178 OFFICERS AXD AGEMS. § 148 from the counsel's position, namely, that the member by some one-sided arrangement makes a contract with himself through his own agent. It seems to us that any such posi- tion as that the OTove is the sole agent of the member in effecting the insurance or collecting the assessments is un- tenable." * In a case in Missouri ^ the subject of the au- thority of local lodges, subordinate to a supreme lodge, in matters relating to the benefit promised by the latter was considered considerably at length. In this case Ju^ge Thompson delivered the opinion of the court, in the course of which he said: "The subordinate lodges are no doubt the agents of the supreme lodge in dealings with the mem- bers for many purposes and in those cases where the sub- ordinate lodges act through their ministerial officers, and where the latter act in conformity with the rules governing the lodges and the order, these officers may become pro liaa vice the agents of the subordinate lodges. But it is not shown to us that these officers are anywhere endowed with power to set aside the rules of the order, or that the subordinate lodges are endowed with such a faculty. On the other hand, it is perceived by the provision of the laws of the order above quoted, that no grand lodge has power even to alter or amend the laws governing the subordinate lodges. The doctrine of waiver, which is often appealed to to prevent forfeitures in the case of policies of insurance, has no ap- plication to the forfeitures of memberships in these orders. The laws and rules governing the different branches of such an order, are in the nature of contracts among all the mem- bers, and considering the widespread extent of these organ- izations and the very great extent to which these schemes of benevolence have taken the place of life insurance,, especially among the working classes, it is highly important 1 Supreme Lodge b. Abbott, 82 Ind. 1 ; Hall r. Supreme Lodge, 24 Fed^ 460. ' Borgraefe r. Knights of Honor, 22 Mo. App. 127. 179 § 150 OFFICERS AND AGENTS. as a principle of public policy, tljat in cases of this kind, their rules and regulations should be substantially upheld by the judicial courts."* § 149. Have Subordinate LiOdges the Characteristics of Ordinary Insurance Agents. — We have seen from the last sections that benefit societies are like life insurance companies in that they are engaged in the same kind of business. We have also seen that the subordinate lodges are the agents through which the grand or supreme lodges transact this business. The suggestion at once arises that, if this be true, the local lodges, when acting for these supe- rior organizations in bringing in new members, taking their applications and consummating the contract, are doing just what the ordinary life insurance agent does. There are mary points of dissimilarity between them in the methods ■of conducting the business and the contract is made in an ■entirely different way, but nevertheless the principles un- ■derlying the contract in both cases are very much the same. § 150. To what Extent can Liocal or Subordinate liodges Bind the Superior Body. — Usually the agents of life insurance companies do not have authority to conclude absolutely a contract of insurance, but only to procure and receive applications, which they forward to the company to be acted upon by the immediate officers of the corpora- tion, who alone have the power to issue the policy.'' If, as in the case of fire insurance companies, the agents were entrusted with blank policies their powers would be very much greater and different rules would apply in determin- ing the liability of their principals for their acts. The sub- ' Karcher v. Supreme Lodge, 137 Mass. 368 ; Hall v. Supreme Lodge, •24 Fed. Rep. 450; Chamberlain v. Liucoln, 129 Mass. 70; Rood v. Rail- way, etc., Assn., 31 Fed. Rep. 62. ^ Bliss on Life Ins., § 283. 180 OFFICERS AND AGEliTS. § IPO ordinate lodges of a great beneficiary order may have either a very limited or a very wide authority : if they have blank certificates which they can issue to whom they please they can bind their superior by almost anything they do in the line of issuing them. Generally, however, the local lodges are like the agents of life insurance companies in that they can only solicit applications which are referred to the supe- rior body to be accepted or declined as its officers may. elect. The subordinate lodges are tied down by instructions which they cannot violate even if they were so inclined. The law of benefit societies still is in its infancy and many impor- tant questions are still to be determined in regard to the authority of the local lodges when acting as agents of the responsible corporation. For example, the .courts must soon decide to what extent the knowledge of the local lodge is that of the superior ; whether notice to the former binds the latter ; and how far the principal is liable for'the mis- feasance or neglect of the agent. Of course, the rule ap- plies to these societies as to mutual insurance companies that the members are supposed to have knowledge of all limitations upon the power of the lodge officers, or the lodge itself, contained in the charter and by-laws; but, as we shall see, the tendency of the courts is to ignore whenever possi- ble the differences between purely mutual and the ordinary stock companies. The probabilities are that future decisions will trace stronger resemblances between benefit societies and life insurance companies and, as their methods of busi- ness become more alike, so it will be easier to apply the same rules to the contracts of both. The society and regu- lar company alike issue certificates or policies which are sent to the local agent, or lodge, who countersigns and de- livers them, and afterwards collects and remits the assess- ments or premiums. Though the society has a fraternal and charitable feature that the company has not, the prin- cipal business of both is the sale of life insurance for a con- 181 § 151 OFFICKRS AXD AGENTS. Bideration. The reasonable inference is that the same principles of agency determine in each case the liability of the principal for the acts of the agent. § 151. General Rules of Agency apply to Agents of all Kinds of Comp&nies. — It must not be thought that the es- tablished rules of the law of agency do not apply to the transactions of life insurance companies. There is no par- ticular sanctity about the business of life, or any other kipd of, insurance. The companies engaged in it have the right to employ agents and give to them such authority as they please; whatever limitations are imposed upon Buch agents, if communicated to those dealing with them, will be binding and if this authority is exceeded, the act will not hold the principal. On the other hand, if the agents are held out to the public as possessing certain powers, their acts within the apparent scope of this authority will bind their principals. While the business of life insurance has its recognized peculiarities, the courts have constantly endeavored to apply to all the transactions of the agents of fire or life insurance organizations, or mutual benefit socie- ties engaged in doing a life insurance business, the general doctrines of the law of agency. The inquiry always is: What was the contract entered into by the parties ? If made through an agent what was the authority of the agent, and had the party dealing with him any notice of limitations or restrictions upon such authority, or were there suflScient circumstances to put him on his guard and to require him to acquaint himself with this actual authority? Of course, in these, as in other cases, much depends upon the special circumstances of each case, but the same rules must be ap- plied to all. It is reasonable, on principle, to distinguish between the acts of agents of mutual organizations, where the assured is supposed to acquaint himself with the laws of the society and the limitations, if any there be con- tained in them, upon the powers of such agents, and cases 182 OFFICERS AND AGENTS. § 152 •where the agent represents a corporation dealing with all as a stranger. As we inquire further into the subject we shall find that the cases are not always consistent, though these inconsistencies become fewer as we study them. It is not that the courts are in doubt as to what is the princi- ple of the law of agency, which is to be applied, but be- cause other legal principles are invoked to modify the hardships of a vigorous application of the strict rules of agency, that the difficulties in reconciling the cases exist. §152. Authority of liife Insurance Agents. — "We shall gain a clearer idea of the difficulties that have arisen in con- struing the authority of the agents of insurance companies if we consider the methods of transacting the business in common use. The companies seek customers throughout a wide extent of territory : they have their agents in every town of every State who devote their time to securing business. These agents, particularly those of life insurance compa- nies, for the representatives of fire companies are gen- erally now intrusted with blank policies which they can countersign and issue, are not authorized to conclude con- tracts or to issue policies, but only to take the proposal of the applicant which is submitted to the principal and by it accepted or rejected. The companies for their protection in dealing with so many strangers make the form of these pro- posals, or applications, comprehensive and in them are a large number of questions to be answered by the person to be insured. By the terms of the application, the truth of the answers to these questions is warranted and the pro- posal is made a part of the policy, which is to be void if any of the answers to these questions are found to be untrue. It was found that frequently, though the applicant had an- swered the questions truthfully, the agent of the company, who had prepared the application and written down the an- swers, had, through accidentor design, incorrectly reported them, so when the applicant signed the paper, supposing it 183 § 152 OFFIGEUS ANO AGENTS. contained what he had stated, he warranted something to be true which was false and when a loss occurred he discovered that he had stipulated away his right of recovery. Natur- ally he sought to lay the blame on the agent, for whose mistakes and faults, while acting in the apparent scope of his authority, he claimed the principal was responsible. On the other side the company claimed the protection of the ex- press contract and invoked the aid of the rule that parol testimony was not admissible to explain or modify the terms of this written contract. The insured asked to have, the doctrine of equitable estoppel applied and insisted that, if the answers were correct but were not exactly written down by the agent of the company the latter was precluded from insisting upon the defense. Here was the first diffi- culty which presented itself and often the companies lost through the inclination of the courts to apply the principles of the law of estoppel. Then came up a new complication. To avoid the effect of these decisions, and for the purpose * of taking, away the right to invoke them, a clause was in- serted in the contract whereby the insured agreed that any person, other than such insured, acting in preparing the ap- plication or effecting the insurance (the agent of the com- pany being thereby meant), should for all intents and par- poses betaken and deemed to be the agent of the insured and not of the company. From this stipulation arose the much debated question of dual agency in insurance contracts,^ which question has caused much of the apparent conflict in the cases. In dealing with this subject the rule has been applied that insurance contracts are to be liberally con- strued in favor of the insured and most strongly against the insurer. The disposition of the courts has also been to ig- nore the suggestion that an agent can represent both parties ' This subject is exhaustively discussed in 6 South. L. Rev. 367, by J, O. Pierce, and in 10 Am. L. Reg. 680 (note to Von Bories v. United, etc., Ins. Co., 8 Bush, 133), by W. W. Wiltbank. 184 OFFICERS AND AGENTS. § 155 to a contract, but to require of insurance agents an undi- vided allegiance to a single principal and a faithful observ- ance of all duties towards him, and in the determination of controversies as to the powers of agents the companies have been held responsible for all the acts of their agents within the apparent scope of their employment in carrying out the business intrusted to them. § 153. The Modern Doctrine. — The most approved rule may be thus stated : Agents of life insurance compa- nies are like those of other corporations ; in doing the busi- ness of their employers they can represent them alone, and not first one party to the contract and then the other. The principals are bound by all acts within the apparent scope of the authority of the agents while engaged in transacting^ the business, but all limitations upon the agent's powers,, which are brought to the knowledge of the persons dealing with them, must be respected.^ The difficulty is in the ap- plication of this rule for, while the prin'ciples of. the law are inflexible and always the same, the facts of no two cases are alike. It is hard to apply the proper principle to these varying facts. We may illustrate this modern doctrine by some free quotations from leading cases. The first of these ^ while it relates primarily to a fire insurance contract, is ap- plicable generally, for its summary of the law is undoubt- edly correct . ' ' On princip le , as well as for considerations of public policy, agents of insurance companies, authorized to- procure applications for insurance, and to forward them tO' the companies for acceptance, must be deemed the agents of the insurers and not of the insured in all that they do in preparing the application, or in any representations they may make to the insured as to the charactiBr or effect of the statements therein contained. This rule is rendered » Post, § 158. 2 Kausal V. Minnesota Farmers', etc., Assn., 31 Minn. 17; 47 Am. Kep. 776. 185 ■§ 153 OFFICERS AND AGENTS. necessary by the manner in which business is now usually done by the insurers. They supply these agents with printed blanks, stimulate them by the promise of liberal com- missions, and then send them abroad in the community to solicit insurance. The companies employ them for that purpose, and the public regard them as the agents of the companies in the matter of preparing and filling up the ap- plications, — a fact which the companies perfectly under- stand. The parties who are induced by these agents to make applications for insurance rarely know anything about the general officers of the company, or its constitution and by-laws, but look to the agent as its fuU and complete rep- resentative in all that is said or done in regard to the appU- cation. And in view of the apparent authority with which the companies clothe these solicitors, they have a perfect right to consider them such. Hence, where an agent to procure and forward applications for insurance, either by "his direction or direct act, makes out an application incor- rectly, notwithstanding all the facts are correctly stated to him by the applicant, the error is chargeable to the insurer and not to the assured.^ After the courts had generally established this doctrine, mane of the insurance com- panies, in order to obviate it, adopted the ingenious ■device of inserting a provision in the policy that the Application, by whomsoever made, whether by the agent . ^ Insurance Co. v. Mahone, 21 Wall. 152; Insurance Co. v. Wilkln- «on, 13 Wall. 222; Malleable Iron Works v. FhcBnlz Insurance Co., 2S ■Conn. i65; Hough v. City Fire Insurance Co., 29 Conn. 10; 76 Am. Dec. 581; Woodbury Savings Bank v. Charter Oak Ins. Co., 81 Conn. 617; Miner v. Fhcenlslns. Co., 27 Wis. 693; 9 Am. Eep. 479; Winans v. Alle- mania Fire Ins. Co., 38 Wis. 342; Kowley v. Empire Ins. Co., 36 N. Y 650; Brandup v. St. Paul F. & M. Ins. Co., 27 Minn. 393. See also Mul- lin V. Vermont Mutual F. Insurance Co., 58 Vt. 113; Continental Ins. Co V. Pierce (Kan.), 18 Pao. Rep. 291; Eggleston v. Council BlufEs Ins. Co. 65 la. 308; Menk v. Home Ins. Co. (Cal.), U Pac, Eep. 837; 18 Id. 117; McGraw o. Germania Fire Ins. Co., 54 Mich. 145; Langdon v. Union M. L. Ins. Co., 14 Fed. Bep. 272; Lueders v. Hartford L. & A. Ins. Co., 13 Jed. Bep. 465. 186 OFFICERS AND AGENTS. § 153 ■of the company or any other person, shall be deemed the iict of the insured and not of the insurer. But, as has been well remarked by another court, « there is no magic in mere words to change the real into the unreal. A de- vice of words cannot be imposed upon a court in place of an actuality of facts.' If corporations are astute in con- triving such provisions, courts will take care that they shall not be used as instruments of fraud or injustice. It would be a stretch of legal principles to hold that a person dealing with an agent, apparently clothed with authority to act for his principal in the matter in hand, could be affected by notice, given after the negotiations were completed^ that the party with whom he had dealt should be deemed trans- formed from the agent of one party into the agent of the other. To be efficacious, such notice should be given be- fore the negotiations are completed. The application pre- cedes the policy and the insured cannot be presumed to know that any such, provision will be inserted in the latter. To hold that by a stipulation unknown to the insured at the time he made the application, and when he relied upon the fact that the agent was acting for the company, he could be held responsible for the mistakes of such agent, would be to impose burdens upon the insured which he never anticipated. Hence, we think that if the agent was the agent of the company in the matter of making out and receiving the application, he cannot be converted into the agent of the insured by merely calling him such in the policy subsequently issued. Neither can any mere form of words wipe out the fact that the insured truthfully informed the insurer, through his agent, of all matters pertaining to the application at the time it was made. We are aware that in so holding we are placing ourselves in conflict with the views of some eminent courts. But the conclusion we have reached is not without authority to sustain it, and is, as we believe, sound in principle and in accordance with 187 § 153 OFFICERS AND AGENTS. public policy.^ It is contended by respondent that there is a distinction in this regard between ' stock ' and ' mutual' insurance companies ; that the difference in the character of the companies makes a difference in the relative duties of the applicant and the company, and in the authority of the agents employed; that in the case of a mutual company, the application is in effect not merely for insurance, but for admission to membership — the applicant himself be- coming a member of the company upon the issue of the policy. By some courts a distinction in this respect is made between the two classes of companies. This distinc- tion is usually based upon the ground that the stipulations held binding upon the insured are contained in the charter, or by-laws of the company, and that a person applying for membership is conclusively bound by the terms of such charter and by-laws. Such is not this case, for the stipu- lations claimed to bind the insured are only in the policy. But so far as conQferns the question now under considera- tion, we fail to see any distinction between the two kinds of companies, and we feel confident that the average appli- cant for insurance is rarely aware of any. It is true that in the case of a mutual company the insured becomes in theory a member of the company upon the issue of the policy. But in applying and contracting for insurance, the applicant and the company are as much two distinct persons as in the case of a stock company, and we see no rea- son for holding the agent who takes the application any less the agent of the insurer in the one case than in the other. 1 Commercial Ins. Co. v. Ives, 66 111. 402; Gans v. St. Paul F. &.M. Ins. Co., 43 Wis. 108; 28 Am. Rep. 535; Columbia Ins. Co. v. Cooper, SO' Pa. St. 331. See also Planters Ins. Co. v. Myers, 55 Miss. 479; 80 Am. Rep. 531; Piedmont & A. L. Ins. Co. v. Young, 58 Ala. 476; Delancey v. Ins. Co., 52 N. H. 581; Commercial Union Ass. Co. v. Elliott (Pa.), 1$ Atl. Rep. 970; 12 Cent. Eep. G6S; Bakers. Ohio Farmers Ins. Co. (Mich.), 38 N. W. Eep. 216; 14 West. Rep. 438; McArthur ». Ins. Co. (la.), 35 N. W. Rep. 430 and note; Sullivan v. Phenix Ins. Co., 34 Kan. 170; Eilenberger v. Protective, etc., Ins. Co., 89 Pa. St. 464. 188 OFFICERS AND AGENTS. § 153 The membership does not begin until the policy is issued. As to all previous negotiations the agent acts only for the ■company." ^ The Supreme Court of the United States also has said :^ "The powers of the agent are, prima facie, •co-extensive with the business intrusted to his care, and will not be narrowed by limitations not communicated to the person with whom he deals. An insurance company, es- tablishing a local agency, must be held responsible to the parties with whom they transact business for the acts and declarations of the agents, within the scope of his employ- ment, as if they proceeded from the principal. In the fifth edition of American Leading Cases, ^ after a full considera- tion of the authorities, it is said: ' By the interested or officious zeal of the agents employed by the insurance com- panies in the wish to outbid each other and procure custom- ers, they not unfrequently mislead the insured, by a false or erroneous statement of what the application should con- tain, or taking the preparation of it into their own hands, procure his signature by an assurance that it is properly drawn and wiU meet the requirements of the policy. The better opinion seemsto be that, when this course is pursued, the description of the risk should, though nominally pro- ceeding from the insured, be -regarded as the act of the insurers." The modern decisions fully sustain this prop- osition, and they seem to us founded in reason and justice, and meet our entire approval. This principle does not admit oral testimony to vary or contradict that which is in writ- ing, but it goes upon the idea that the writing offered in evidence was not the instrument of the party whose name 1 Colnmbia Ins. Co. v. Cooper, 50 Pa. St. 331. See also Eilenbergerc. Protective, etc., Ins. Co., 89 Pa. St. 464; WMted «. Germanla Ins. Co., 76 JS. Y. 415; Lycoming Fire Ins. Co. v. Woodworth, 83 Pa. St. 223; Thompson v. Ins. Co., 104 V. S. 252, and Lycoming Fire Ins. Co. ». Langley, 62 Md. 196. 2 Ins. Co. V. WUkinson, 13 "Wall, 235. 8 Vol. 2, p. 917. 189 § 155 OFFICERS AND AGENTS. is signed to it, that it was procured under such circum- stances by the other side as estops that side from using it or relying on its contents ; not that it may be contradicted by oral testimony, but that it may be shown by such testi- mony that it cannot be lawfully used against the party whose name is signed to it." * § 154. The Contrary View. — The views expressed in the foregoing cases have not always been received with ap- proval, but have been criticised with great force and reason. The Supreme Court of New Jersey furnishes perhaps the leading authority ^ on the other side, and argues that the doc- trine of Insurance Company v. Wilkinson,^ strikes at the foundation of the recognized principle that parol evidence is not admissible to explain or modify the terms of a written contract. " To except policies of insurance out of the class of contracts to which they belong," says the court, " and deny them the protection of the rule of law that a contract which is put in writing shall not be altered or varied by parol evidence of the contract the parties intended to make, as distinguished from what appears, by the written con- tract, to be that which they have in fact made, is a violation of principle that wiU open the door to the grossest frauds." * § 155. The General Rule Unimpaired. — The general rule must be taken to be unimpaired by these rtiodern de- cisions, which apply the principle that where a written con- tract is entered into all previous preliminary agreements and > Insurance Co. v. Mahone, 21 Wall. 152; post, § 221 and § 428. 2 Franklin F. Ins. Co. v. Martin, 40 N. J. L. 568; 8 Ins. L. J. 134. » 13 WaU. 222, supra. * Van Scholck v. Niagara F. Ins. Co., 68 N. T. 438 ; Jennings v. Chenango Co. Mut. Ins. Co., 2 Denio, 75; Slieldon v. Hartford F. Ins. Co , 22 Conn. 235; 68 Am. Dec. 420; Barrett v. Union Mut. Ins. Co., 7 Cush. 176; DeweesB. Manhattan Ins. Co., G Vroom (35 N.J. L.), 366; Lewis c. Phoe- nix M. L. Ins. Co., 39 Conn. 100; Eyan v. World M. L. Ins. Co., 41 Conn. 168; 19 Am. Eep. 490; ;>osf, §221 and §428. 190 OITICERS AND AGENTS. § 1 5& negotiations are merged in it, and an insurance policy, together with the application, if incorporated therein or properly refen-ed to, govern all matters covered by it.^ If the contract, whether contained in the policy and applica tion, or the constitution and by-laws of a mutual organiza- tion, provides that the insurers are not to be bound by any agreements or statements of the agent, unless the same be incorporated or referred to in the contract, then such pro- vision of the parties wiU be enforced.* § 156. Dealings with Agents of Mutual Companies. — A distinction has sometimes been made between policies issued by a stock company and those issued by a mutual company, but this distinction is without any substance. The insured, in a mutual company, by taking out a policy, be- comes a member of it. But nevertheless a member of a corporation, and even a director, in dealing with the corpo- ration stand, in respect to their contracts just the same as a stranger,^ and the Supreme Court of Pennsylvania says : * " Too much is attempted to be made of the relation of co- corporator in which the insured stands, in mutual insurance companies. In the act of insurance he is not so, but a stranger ; and he becomes a corporator only by the con- summation of that fact; and this does not convert the previous act of examination and description, by the agent of the company, into his act and change it into a represen- tation by him." * 1 Ins. Co. V. Mowiy, 96 XT. S. 544; Lycoming F. Ins. Co. v. Langley, 62- Md. 196; Thompson v. Ins. Co., 104 U. S. 252; Sevr York L. Ins. Co. ». Fletcher, 117 U. S. 519; Am. Ins. Co. r. Neiherger, 74 Mo. 167. * Enos V. Sun Ins. Co., 67 Cal. 621; Leonard v. Am. Ins. Co., 97 Ind. 299 ; Lycoming Ins. Co. v. Langley, 62 Md. 196 ; Loehner v. Home M. Ins. Co., 17 Mo. 247. » Franklin F. Ins. Co. v. Martin, 40 N. .1. L. 579 ; Stratton v. Alien, 16- S. J. Eq. 229. * Camberland VaUey Ins. Co. v. ScheU, 29 Pa. St. 31. < Eansal v. Minnesota Farmers', etc., Ins. Co., 31 Minn. 17; 47 Am. Bep. 776, ante, § 148. i;ii ■§ 158 OFFICERS AND AGENTS. § 157. Membership in Mutual Benefit Societies, — Itwould seem reasonable that the doctrine ought to generally prevail that every person wishing to become a member of a mutual benefit society should be supposed to make himself acquainted with the charter and regulations of the society, and, where these are specific in their requirements or limitations upon the powers of agents, or lodges, then that all such requirements and limitations should be presumed to be known to the agent and the applicant alike and must be complied with by both.^ A distinction, however, is to be made between the require- ments of the charter and those of the by-laws and between provisions that go to the essence of the contract and those that are directory merely.^ § 158. Tlie Correct Doctrine as to the Authority of In- surance Agents Stated in Certain Cases. — The correct doctrine in regard to the authority of insurance agents is ' laid down in a decision of the Court of Appeals of Maryland,' taken in connection with the modifications stated by the Supreme Court of Pennsylvania.* In the former the fol- lowing was cited with approval from a standard work on in- surance :° "In all cases where the assured has notice of any limitation upon the agent's power, or where there is anything about the transaction to put him on inquiry as to the actual authority of the agent, acts done by him in ex- 1 Susquehanna Ins. Co. ». Perrine, 7 W. & S. 348; Eilenberger ti. Protective, etc., Ins. Co., 89 Pa. St. 464; Leonard v. American Ins. Co., S7 Ind. 299; Belleville Mut., etc., Ins. Co. «. Van Winkle, 1 Beas. (N. J.) 333; Hellenberg v. District No. 1, etc., 94 N. Y. 580; Eastman v. Provi- dent, etc., Assn. (N. H.), 20 Cent.L. J. 580. 2 Cumberland, etc., Ins. Co. v. Schell, 29 Pa. St. 31 ; Priest v. Citizens, «tc., Ins. Co., 3 Allen, 602; Hale v. Mech , etc., Ins. Co., 6 Gray, 169; s.c. 66 Am. Kep. 410; Brewer ji. Chelsea Ins. Co., 14 Gray, 203; Leonardo. American Ins. Co., 97 Ind. 299. 8 Lycoming Fire Ins. Co. v. Langley, 62 Md. 196. * Eilenberger v. Protective, etc., Ins. Co., 89 Pa. St. 464. ^ Wood on Ins., § 387. 192 OFFICERS AND AGENTS. § 158 •cess of his authority are not binding, as where it is gen- ■«rally known that limitations are imposed in certain respects. ■So, where direct notice, or any notice which the assured as a prudent man is bound to regard, is brought home to the fissured, limiting the powers of the agent, he relies upon any act in excess of such limited authority at his peril. That An insurance company has the right to limit the powers of its agents must be conceded, and when it does impose such limitations upon his authority, in a way that no prudent man ought to be mistaken in reference thereto, it is not bound by an act done by its agent in contravention of such notice." In the Pennsylvania case the court said that no <5ase " declares that the fraud or mistake of a knavish or blundering agent, done within the scope of the powers given bim by the company, will enable the latter to avoid a policy to the injury of the assured, who innocently became a party to the contract. The authorities go far, very likely not too far, in holding the assured responsible for his warranty, -and in excluding oral evidence to contradict or vary it ; but they do not establish that where an agent of the assurer has cheated the assured into signing the warranty and paying the premium, and the policy was issued upon the false state- ments of the agent himself, the assured shall not prove the fact and hold the principal to the contract, as if he had com- mitted the wrong. The defendant is a mutual company, and holders of its policies are members. Membership dates "from consummation of the contract, and not before. Dur- ing negotiations for insurance, a mutual company occupies no other or better position than one organized on the stock plan, and cannot profit by a contract induced by the fraud •of its agent ; for the membership arises from, but does not precede the contract.^ As to all preliminary negotiations, the agent acts only on behalf of the company. A stipula- tion in a policy that if the agent of the company, in the ' Lycoming P. lus. Co. v. Woodworth, 83 Pa. St. 223. 13 193 § 159 OFFICKIJS AND AGK.VTS. transaction of their business, should violate the conditions^ the violation shall be construed to be the act of the insured^ and shall avoid the policy, will not render the insured re- sponsible for the mistakes of the agent.* This was said where the mistake was of representations, and does not qualify the rule which holds the assured upon his covenants- or warranties. But it shows that a company contracting by its agent will not always escape the consequences of th& fraud or mistake of its agent, by inserting a stipulation in the policy that such agent shall be deemed the agent of the- insured, who, at the time of applying for the policy, was^ ignorant of the insurer's intention to so stipulate." W& can see no reason why this rule should not apply to mutual benefit societies wherever the facts are analogous. ^ § 159. How far Knowledge of Agent Binds Princi- pal. — It is also an important inquiry how far the knowl- edge of the agent of an insurer is to be deemed that of his principal. The subject is necessarily closely connected with that of the application and the powers of agents gen- erally to waive conditions and by their conduct to estop the company or society. It is sufficient to state briefly what is considered the true principle. Inthe absence of a writ- ten application, containing representations or warranties,, where an agent, upon his own knowledge or investigation,^ reports a certain state of facts upon which the policy or certificate is issued, then, in the absence of any attempt to- mislead on the part of the insured, the principal is bound by the acts of the agent.^ Again, material errors committed by the agent, or omissions of the agent in stating material 1 Columbia Ins. Co. v. Cooper, 60 Pa. St. 331. » Ante, § 153. » Cumberland Valley, etc., Ins. Co. v. Scbell, 29 Pa. St. 31; Meadow- craft V. Standard F. Ins. Co., 61 Pa. St. 91 ; Caston v. Monmouth Mut. F. Ins. Co., 54 Me. 170; Comml. Ins. Co. v. Ives, 56 111. 402; Brink v. Mer- chants', etc., Ins. Co., 49 Vt. 442. 194 OFFICERS AND AGENTS. § 160 facts, in the absence of fault upon the part of the insured would affect the principal with the kno wledge of the agent.^ Or, if a mutual mistake was made, on general principles, equity would relieve the insured, either before or after loss, if he had acted in good faith, ^ as it certainly would in case of fraud on the part of the agent, if circumstances existed from which the authority of the agent c ould reasonably be inferred.^ If, however, the agent and the insured, both knowing material facts, agree to conceal or omit them from the application, then their acts amount to fraud and the principal is not bound. As was said by the Supreme Court of Pennsylvania: * " Smith's case * rests upon a doc- trine that ought to prevail everywhere, to wit: ' The prin- cipal is bound by the acts of his agent whilst he acts with- in the scope of the deputed authority; but if, departing from that sphere, or continuing in it, he commits a, fraud upon his principal, a particeps criminis shall not profit by the fraud.'"* § 160. Notice to Agent. — Often, under the proAnsions of the contracts of insurance companies and benefit socie- ties, notice is required to be given of certain facts under specified contingencies. The general rule is that, if the no- tice be given to the board of directors, or to any officer or 1 Campbell u. Merchants', etc., Ins. Co., 37 N. H. 66; 72 Am. Dec. 324; BeMer ». Grerman Ins. Co., 68 Ind. 353; Beebe v. Hartford, etc., Ins. Co.,. 25 Conn. 51; 65 Am. Dec. 553; Commercial Fire Ins. Co. v. Allen (Ala.), 1 South. Rep. 202; Howard Ins. Co. v. Bruner, 23 Pa. St. 50; May on Ins., §132. ' Franklin F. Ins. Co. ». Martin, 40 N. J. 568 ; 8 Ins. L. J. 134 ; May on Ins., § 145; In re Uniyersal Non-Tariff Ins. Co., L. E. 19 Eq. 385; poaty § 278. » McLean o. Equitable L. A. Soc, 100 Ind. 127; Union Mut. Ins. Co, V. Slee, 110 111. 35. • Eilenberger v. Protective, etc., Ins. Co., 89 Pa. St. 464. • Smith o. Insurance Co., 24 Pa. St. 320. • New York L. Ins. Co. v. Fletcher, 117 U. S. 519; Ryan v. World Mut. L. Ins. Co., 41 Conn. 168. 195 § 160 OFFICERS AND AGENTS. agent of the company, whose duty by the by-laws, resolu- tions and usages of the company, is to communicate it to the directors or managing officials of the company, it is sufficient. " Notice of facts to an agent is constructive notice thereof to the principal himself, when it arises from, or is at the time connected with, the subject-matter of his agency; for, upon general principles of public policy, it is presumed that the agent has dSmmunicated such facts to the principal, and if he has not, still the principal, having entrusted the agent with the particular business, the other party has a right to deem his acts and knowledge obliga- tory upon the principal; otherwise the neglect of the agent, whether designed or undesigned, might operate most inju- riously to the rights and interests of such party." ^ This rule has been applied to insurance companies, as for exam- ple, to cases where true answers have been given to the agent in filling up an application for life insurance but the agent has not correctly stated the answer ; ^ and as to notice of prior or other insurance, or of an incumbrance.' In one case it was said: * " The notion that a corporation can only act under their corporate seal and by their president and secretary, has become obsolete. Unless they may be bound by the acts and admissions of their officers and agents acting in the ordinary affairs of the corporation, so far as relates to the business usually transacted by such officers and agents, they would enjoy an immunity incom- patible with the rights of individuals and destructive of the object of their creation." Where there is nothing but a provision in general terms for a notice, without presorib- 1 story on Ag., § UO. ' Insurance Co. v. Wilkinson, ISWaii. 222; Millers. Mutual Ben. Life Ins. Co., 31 la. 216; 7 Am. Rep. 122. Contra, Vose v. The Eagl& L. & H. Ins. Co., 6 Cush. 42. 8 New England F. & M. Ins. Co. v. Schettler, 38 111. 166; Bowleyc. Empire Ins. Co., 36 N. Y. 650; Feck v. New London Mat. Ins. Co., 22 Conn. 575. * N. £. Fire & M. Ins. Co. v. ScheUler, 38 m. 171. 196 OFFICEKS AND AGENTS. § 1<50 ing, either in terms, or by necessary implication, the mode in which it should be given, a verbal notice is good, unless the notice be in a legal proceeding, it which case it should be in writing.^ For the protection of the assured and to Iffevent fraud, authority of an agent to do a particular act will often be presumed, although the requirements of the charter or by-laws as to matters of form have not been strictly complied with.^ 1 McEwenc. Montgomery Ooimty, etc., Ins. Co., 6 Hill, 101; Sexton V. Montgomery County, etc., Ins. Co., 9 Barb. 191 ; Gilbert v. Columbia Turnpike Co., 3 Johns. Cas. 107; MUler v. Mutual Ben.L. Ins. Co., 81 la. 216; 7 Am.Bep. 124; post, § 105. ' Masters B. Madison, etc., Ins. Co., 11 Barb. 624; New Eng. P. & M- Ins. Co. V. Schettler, 38 SI. 166; Miller o. Mutual Ben. L. Ins. Co., 31 la. 216. (The subject of the powers and authority of agents of insurance companies is farther considered in treating of matters relating to the ap- plication, § 221, et seq.; those concerning payment of premiums, § 367, et seq.; those involTing questions of notice, etc., in proofs of loss, §§ 405, 408, et »eq.; and in discussing the subjects of waiver and estoppel, §§ 426, 428, et »eq.} 197 CHAPTEE V. NATUEB AND SUBJECT-MATTER OF CONTRACT: AFTER EN- ACTED LAWS. § 161. Contract of Benefit Society with Members, Where Found. 162. Is one of Insurance. 163. A Life Insurance Contract is not strictly one of Indemnity. 164. Is Executory and Personal. 165. Is Aleatory. 166. Life Insurance Policies are Valued Policies. 167. Endowment Insurance is Life Insurance. 168. Benefit Societies restricted as to Beneficiaries. 169. When Contract is Executed, Society may be Estopped. 170. Liberality of Construction of Charter by some Courts. 171. Contracts of Mutual Companies where a By-Law has been Vio- lated. 172. Insurance Contract need not be in Writing. 173. What Constitutes Perfect Parol Contract of Insurance. 174. Informal Execution. 175. Lex Loci and Lex Fori. 176. Stipulation in Policy cannot avoid Operation of Statute. 177. Interpretation of Contracts of Insurance. 178. Interpretation of Contracts of Benefit Societies. 179. Construction when Language is Ambiguous. 180. Contracts of Mutual and Stock Companies Construed alike. 181. Other Papers part of Contract when. 182. The same Subject: Other Illustrations. 183. Reference in Policy to other Papers must be Plain to make them a part of It. 184. What Constitutes the Contract of Insurance. 185. After Enacted Laws' of Benefit Societies Generally bind their Members. 186. An Extreme Case. 187. The Better View: After Enacted Laws must not ASect Vested Rights. 188. The Subject Discussed by the Supremo Court of Alabama. § 161. Contract of Benefit Society with Members, Where Found. — The principal object of all benefit socie- 198 NATDKE AND SUBJECT-MATTER OF CONTRACT. § 161 ties is to confer certain advantages upon their members and pay to them or their beneficiaries specified benefits. The understanding between the association and the individiials who compose it, as to the membership, the duties imposed on members and the benefits to be bestowed on them is a contract. The authorities are not clear as to where this •contract is to be found in cases where a certificate is issued to the member, whether in such certificate, in the laws of the society, or in both. The Court of Appeals of New York, in a case involving the right to recover a death ben- efit, said: ^ " The charter and by-laws of the defendant ■corporation constituted the terms of an executory contract to which the testator assented when he accepted admission into the order." In a similar case the Supreme Court of Wisconsin said: ^ " The constitution and by-laws certainly contain the contract which was entered'into by the parties." On the other hand, it is asserted in some cases, that the cer- tificate of membership contains the contract. In a case in the Federal court in Iowa* it was said: " The contract is contained in the certificates ; " the Supreme Court of Indiana -also says, in a case whercthe benefit of a beneficiary society was in dispute: * " The certificate, although issued by a mu- tual benefit association is, in .legal contemplation, a policy of insurance, and is in most respects governed by the gen- «ral rules of law which apply to insurance contracts." * In another case' the same court says: " The essential differ- once between a certificate in a beneficiary association and an ordinary life policy is, that in the latter the rights of the beneficiary are fixed by the terms of the policy, while in » HeUenberg v. District No. 1, 1. O. O. B., 94 N. Y. 580. ' Schonck v. G«genzeiten, etc., 44 Wis. 375. * Worley v. Northwestern Masonic Aid Assn., 10 Fed. Eep. 228. ' Presbyterian, etc.. Fond v. AUen, 106 Ind. 593. ' Bauer v. Sampson Ix>dge, 102 Ind. 262; Elkhart M. Aid Assn. v. Houghton, 98 Ind. 149; Sup. Conun-indery, etc., v. Ainsworth, 71 Ala. 443; Supreme Ledger. Schmidt, 98 Ind. 374. ' Masonic, etc., Ben. Soc. r. Burkhart, 110 Ind. 192. 199 § 162 NATURE AND SUBJECT-MATTER OF CONTRACT. the former they depend upon the certificate and the right* of the member under the constitution and by-laws of the- society." In an action to recover a sick benefit, no certi- ficate having been issued, the Supreme Court of Massa- chusetts said: ^ " The corporation is not a mere charitable- society, but is rather in the nature of an association for the mutual insurance of its members against sickness or acci- dent. If it refuses to perform its contract, contained in the by-laws, the member who is injured may have recourse to the proper courts to enforce the contract." There is- still another "view. In a case, where the promised benefit of a beneficiary society was involved, the Supreme Court of New Hampshire said: ^ " The charter, by-laws and cer- tificate of membership, taken together, show what was the understanding of the parties." To the same effect is the statement in a similar case in Kentucky,^ wherein the- Court of Appeals said: "The certificate of membership constitutes the contract ; but it is to be construed and gov- erned by the company's charter. In fact, it may be said that the charter is a part of the contract ; and if it declare* who, in a certain event, shall be the beneficiary, the parties cannot alter this legislative direction, because neither the company nor the insured ca« do ai&ything in violation of it." In a similar case in Texas* this view is also taken. The document issued to the members of a benefit society must be such as its laws prescribe ; it is usually a certificate- which recites that the person named therein is a member of the society and " entitled to all the rights and privileges- of membership " and to participate in its beneficiary fund to a specified amount, which shall be paid at his death, if then a member in good standing, to a named person, on condition that such member shall, in every particular, while: 1 Dolan V. Court of Good Samaritan, 128 Mass. 437. » Eastman v. Provident M. Relief Assn., 20 Cent. L. J. 266 (1883). » Van Bibber v. Van Bibber, 82 Ky. 350. * Splawn V. Chew, 60 Tex. 535. 200 NATURE AND SUBJECT-MATTEK OF CONTEACT. § Ifll- a member of the society, comply with its laws, rules and re- quirements. This certificate is in the nature of an insur- ance policy issued by a mutual company. ^ If the certifi- > In the following cases full copies of the certificates sued on are given: Grand Lodge A. 0. U. W. v. Child (Mich.), U West. Rep. 454; 3&' N. W. Eep. 1; Wendt v. Iowa Legion of Honor (la.), 34 N. W. Rep. 471} Supreme Lodge Knights of Honor e. Johnson, 78 Ind. 110; Richmond v^ Johnson, 28 Minn. 447; Supreme Lodge Knights of Pythias ». Schmidt, 98 Ind. 374; Royal Templars of Temperance v. Curd, 111 lU. 286; Holland V.Taylor (Ind.), 12 N. E. Rep. 116; 9 West. Eep. 606; Supreme Com- lOandery, etc., v. Ainsworth, 71 Ala. 437. The certificate in the case first above cited (Grand Lodge v. Child) was as follows : — " Grand Lodge Ancient Order of United Workmen of Michigan. " No. 39. $2000. " This certificate, issued by the authority of the Supreme Lodge of the Ancient Order of United Workmen, witnesseth, that Brother George J, Child, a master workman degree member of Unity Lodge No. 9 of said order, located at Detroit, in the State of Michigan, Is entitled to all the rights and privileges of membership in the Ancient Order of United Workmen, and to participate in the beneficiary fund of the order, to the- amount of two thousand dollars, whic,h sum shall, at his death, be paid to Susan Drury. This certificate is issued upon the express condition that said George J. Child shall, in every particular, whUe a member of said order, comply with all the laws, rules, and requirements thereof. " In witness whereof the Grand Lodge of Michigan has caused this to be signed by its Grand Master Workman and Recorder, and the seal thereof to be attached, this 19th day of September, 1878. " [SEAI, OP GRAND LODGE.] " GeO. H. PENinNGTON, " Grand Master Workman, "Attest: " W. Warnb Wilson, Grand Becorder. "We, the undersigned, Master Workman and Recorder of Unity Lodge No. 9, do hereby countersign this certificate, and attach the seal of this lodge hereto, rendering the same valid and in full force, this 19th day of September, 1878. " [seal of scbobdinatb lodge.] «' Thomas J. Ckowb, " Attest: " Master Workman.- " JOHK Gallowat, -Becorder." In Holland v. Taylor (supra") the certificate was as follows : — " Royal Arcanum Benefit Certificate. " This certifiate is issued to Charles D. Taylor, a member of Hoosler Council No. 394, Royal Arcanum, located at Indianapolis, Ind., upoB 201 ^161 NATURE AND SUBJECT-MATTER OF CONTRACT. him, to be forfeited to the company. The fact, offered to be proved by the defendant, that the object of the organi- zation was benevolent and not speculative, has no bearino" upon the nature and effect of the business conducted and the contracts made by the corporation . ' ' This definition and 204 NATURE AND SUBJECT-MATTER OF CONTRACT. § l(i}J application have been generally cited with approval by the courts of other States which have, practically without ex- ception, held that the contracts of benefit societies whether the agreed sum is to be paid upon the sickness or disability ■of the member to him in person, or upon his death to his designated beneficiary, is one having all the characteristics ■of an insurance contract.^ In an action brought to recover the benefit promised by a benefit society on the death of a member, the Supreme Court of Alabama said: ^ "The in- strument in writing upon which this suit is founded, and which is set out in full in the complaint, entitled a * Knight's Benefit Certificate,' has the elements and charac- teristics of a contract of life insurance. It purports to have been issued by the Supreme Commandery of the Knights of the Golden Rule, which is averred to be a cor- poration, created and organized under a law of the State of Kentucky. The commandery thereby promises, on the death of the husband of the appellee, to pay her two thou- sand dollars, in consideration of the husband having become a member of the order, and having paid the fee for admis- sion to membership and of his payment in the future of all assessments levied and required by the supreme command- ery, upon the condition that he remained a member of the •order, in good standing, and complied with all the laws then in force or subsequently enacted. These are the essential ■elements of a contract of life insurance, made by a mutual insurance company with one of its members. Life is the risk and death is the event upon which the insurance money is payable. There is not, as in ordinary contracts or poli- 1 Endowment & Ben. Assn. v. State, 35 Ean. 253; State v. Merchants' Exchange, etc, 72 Mo. 146; Bolton v. Bolton, 73 Me. 299; Folmers' Ap- peal, 87 Pa. St. 133; State v. Bankers, etc., 23 Kan. 499; Miner v. Mich. Mnt.B.Ass. (Mich.),6 West. Eep. 117; 29N. W.Eep.852; State ». Farmers -& Mech., etc., Assn., 18 Neb. 276; Supreme Commandery, etc., «. Ains- vorth, 71 Ala. 443; ante, §§ 51 and 52. ' Supreme Commandery, etc., v. Alnsworth, 71 Ala. 443. 205 § 163 NATURE AND SOBJECT-MATTER OF CONTRACT. cies, a stipulation for the payment of premiums fixed a,nd certain in amount, at the inception of the risk, and at pe- riods, definitely appointed, during its continuance. The payment of the fee for admission to membership, and of the assessments levied and required by the commandery, are the equivalent of premiums, and form the pecuniary con- sideration of the contract. The condition expressed, that the assured shall remain a member of the order in good, standing, observing its laws, is the expression of that which is implied in all insurance of members by mutual compa- nies. The members of such companies are presumed to know the charter and by-laws, and to contract in referenc& to them though they may not be recited or referred to in the contract." ^ § 163. A Lilfe Insurance Contract is not Strictly one of Indemnity. — A contract of insurance is ordinarily one of indemnity; that is, the insurer agrees that upon the dam- age, loss or destruction of something he will, in the agreed way, indemnify the insured. It has been vigorously con- tended that a contract of . life insurance is also one of in- demnity, as much as fire or marine insurance. Mr. May, for example, in his treatise on insurance,^ says: " In the one case, the insurance is against the loss of capital, which produces income; in the other, it is against the loss of fac- ulties, which produce income." And again:-'' "It (the contract) can never, therefore, properly be entered into ex- cept for the purpose of security or indemnity ; though the fact that the contract may, under certain circumstances, re- sult as a profitable investnient, does not vitiate it, if entered into in conformity to the principles which underlie it. But BO far as it seeks any other object than indemnity for loss^ 1 Holland v. Taylor .(Ind.), 12 N. E. Rep. 116j 9 West. Eep. 606; Far- mer V. State (Tex.), 7 S. W. Rep. 220. 2 §7. » § 117. 206 NATURE AND SUBJECT-MATTER OF CONTRACT. § 104 it departs from the legitimate field of insurance, and en- grafts upon the contract a purpose foreign to its nature." And yet the same author has said ^ that life insurance ' ' in some of its phases, is not merely a contract of indemnity, hut includes that with a possibility of something more." In Dalby v. The India and London Life Ass. Co.,* it was said of life insurance that it "in no way resembles a con- tract of indemnity," and Baron Parke again, in referring to the fact that Lord Mansfield decided the case of Godsall v. Boldero * on the theory that a life insurance contract was like one of marine insurance, one for indemnity only, says : " But that is not of the nature of what is termed an assur- ance for life ; it really is what it is on the face of it, — a contract to pay a certain sum in the event of death?" The Supreme Court of the United States* cites this case and approves its reasoning, saying: "In life insurance the loss can seldom be measured by pecuniary values." We must conclude, therefore, that, though sometimes, as where a creditor insures the life of his debtor, the contract is in the nature of an indemnity, still, strictly speaking, a life insur- ance contract is not generally one of indemnity.® Public policy, however, forbids a person to take out a policy of in- surance upon the life of another in the continuance of which he has no expectation of advantage or pecuniary in- terest, because such policies are in the nature of wagers upon human life and are gambling transactions. Moreover they furnish a strong inducement to the person holding such insurance to hasten the termination of the life of the insured.* 1 May on Ins., § 117. * 16 C. B., 365; 24 L. J. C. P. 2. ' 9 East, 72. * Conn. Mnt. Lite Ins. Co. v. Schaefer, 94 U. S. 457. ' See Scott v. Dickson, 108 Pa. St. 6 ; Ferguson v. Mass. M. L Ins Co., 32 Hun, 306; 102 N. Y. 647. * Post, § 248, for a discussion of the subject of insurable interest. 207 !§ 165 NATURE AND SUBJECT-MATTER OF CONTRACT. § 164. Is Executory and Personal. — This contract is •executory and personal in its nature. Of a fire insurance policy the Supreme Court of Ohio said:^ " It is a mere per- .sonal indemnity against loss to the person with whom it is made, or those falling within the scope of its provisions. As soon as the interest of such person ceases in the prop- -erty the contract is at an end, from the impossibihty -of any loss happening to him afterwards. It is not assignable without the consent of the insurer." ^ So far as the principle of the foregoing statement just cited applies to life insurance policies it is incorrect. The question of personality is of great importance in cases of fire insurance where restraints on alienation are insisted on, but in life insurance contracts it is of less importance. It is settled •doctrine that a life policy originally valid does not cease to be so by the cessation of the interest of the party assured in the life of the insured.^ The contract however, must be considered personal, because generally not assignable with- -out the consent of the insurer.* The contract falls strictly within the definition of those that are executory; on the .one hand, certain assessments or premiums are to be paid, on the other side, it is to be executed by the payment of the sum insured when the contingency occurs.* § 165. Is Aleatory. — Another characteristic of the con- tract is that it is what the French writers call aleatory, " or .one in which the equivalent consists in the chances for gain 1 McDonald V. Black's Admr., 20 Ohio St. 185; 55 Am. Dec. 448. s Glendale 'Woolen Co. d. Protection Ins. Co., 21 Conn. 19; 64 Am. ;Dec. 309; Morrison's Admr.*. Tennessee, etc., Ins. Co., 18 Mo. 262; 59 Am. Dec. 305 and note. 3 Conn. Mut. L. Ins. Co. v. Schaefer, 94 XJ. S. 457; post, § 253. ' For discussion of the assignability of life insurance policies and .change of beneficiary, see Chap. IX. » Mutual Life Ins. Co. v. Wager, 27 Barb. 354; Hellenberg v. District JIo. 1, 1. O. O. B. B. 94 N. Y. 686 ; New York L. Ins. Co. v. Statham, 93 St. John V. American Mnt. L. Ins. Co., 2 Duer, 419; 13 N. Y. 31; 64 Am. Dec. 529. ' Bouvier L. D., tit. Lex Loci. ' Bouvier L. D., tit. Lex Fori. ' Bishop on Cont., § 1112. 219 § 175 NATURE AND SUBJECT-MATTEK OF CONTRACT. cision of every question, follow the laws prescribed for it by the sovereignty under which it «dts. But there is a comity of nations, as the term is, whereby it has become- customary for the various governmental powers to respect one another's laws; so that, if a contract made in one country is drawn in question in another, the tribunals of the latter will, in the absence of any domestic rule or policy restraining, accept the foreign law as the domestic,, for ascertaining its validity. But this rule stops short at every point where it would become subversive of the do- mestic law. The interpretation and effect of the contract are determined by the law of the place of its intended per- formance, whether at home or abroad; its discharge when by operation of law, by any law moving thereto, and hav- ing a jurisdiction over it. In enforcing the contract, the foreign procedure is never employed." ^ In insurance con- tracts the wording of the policy, or certificate, generally determines the place where it is made. If an application is sent direct to the home office and the policy or certificate i* Hiere made out and delivered, or mailed, to the applicant,, the home office is the place of the contract.* Generally there is a provision in the policy or certificate that it shall not be binding until payment of premium, or countersign- ing by a local agent. In such case the place of countersign- ing and delivery is that of the contract.' The Federal court in Oregon happily stated the law on this point as follows: * " Generally speaking the validity of a contract is to be de- cided by the law of the place where it is made ; and if valid or 1 Whitridge v. Barry, 42 Md. 140; Cannon v. N. W. Mat. L. Ins. Co, 29 Hnn, 470; Bloomingdale v. Lisberger; 24 Hun, 355. 2 Lamb r. Bowser, 7 Biss. 315-372; Hermano v. Mildred, 9 Q. B. 530; Northhampton M. L. S. Ins. Co. v. Tuttle, 40 N. J. L. 476; Wright v. Sun Mut. Ins. Co., 6 Am. L. Keg. 483. * Wall V. Equitable L. Assur. Soc, 32 Fed. Eep. 273; Continental L. Ins. Co. J,. Webb, 64 Ala. 688. * Northwestern M. L. Ins. Co. v. Elliott, 7 Sawy. 17; 6 Fed. Kep. 225. 220 NATURE AND SUBJECT-MATTER OF CONTRACT. § 175 ▼oid there, it is yalid or Toid everywhere. The few exceji- tions to this rule need not be mentioned in the application of it to this case.i Where, then, was this contract made? in Wisconsin or Oregon? The answer to this question in- Tolves the inquiry, where did the final act take place which made the transaction a contract, binding upon the parties? The premium was paid to the agent of the plaintiff at Port- land, who then and there countersigned and delivered the policy. This was the consummation and completion of the -contract. But to put this beyond a doubt, the policy itself declares that it shall not be binding on the company until these acts are performed. And until it was binding upon the company, it was not binding on the applicant — in short, it was not yet a contract, but only a proposition.' The case of Hyde v. Groodnow,^ cited by counsel for plaint- iff, is not contrary to this conclusion. There the as- sured, living in Ohio, applied to a company in New York, through its local agent and surveyor, for insurance, sending with his application a premium note and the report of the surveyor thereon. The company accepted the application in New York, and mailed the policy direct to the applicant in Ohio, which in accordance with its by-law, contained the stipulation tliat it should not be binding until the application «nd premium note were deposited in the ofBce of the com- pany and approved by its directors. The contract, if made in Ohio, was illegal and void, because the company was not authorized to transact bnsine^ there, but in a suit upon the premium note against the maker in New York, the court held that the contract was made in the latter State, and I Cox «. United States, 6 Pet. 803; Hyde v. Goodnow, S K. Y. 269; In TC Caifford, 2 Sawy. 438. ' Pomeroy v. Mahattan L. Ins. Co., 10 HI. 400; Thwing v. Great West- «mlns. Co., Ill Mass. 109; Wood F. Ins. 189, n. 2; Hardie «. St. Lonls M. L. Ins. Co., 26 La. Ann. 342; St. I.oal8 M. L. Ins. Co. v. KeaaeOj, 6 Bosh, 4S0. ' 3N. Y. 269. 221 § 176 NATURE AND SUBJECT-MATTER OF CONTRACT. therefore valid, because, when the application was approve(J and the policy deposited in the mail, at New York, ad- dressed to the defendant, the contract was then and thereby- executed, and became binding on the parties thereto. An offer by mail to insure certain property and an accept- ance by letter of the proposition, constitute a valid con- tract at and from the place and date of mailing such letter of acceptance." ^ § 176. Stipulation in Policy cannot avoid Operation of Statute. — A corporation cannot by stipulations in its contract avoid or withdraw the operation of a statute of the place in which it does business. The rule and the facts to which it was applied are sufficiently stated by Judge Treat thus: ^ "Inasmuch as the policy sued on declared that it rests on the basis of answers made in the application, and that said policy was to be issued at the home office in New York on return thereto of the application, can the plaintiff avail himself of the force of the Missouri statute ? The de- fendant company was doing business in Missouri, with the privileges granted to it here, when said insurance was ef- fected. It may be that the formal acceptance of the pro- posed contract was, by the letter of the contract, to be consummated in New York. The broad proposition, how- ever, remains, no artifice to avoid which can be upheld. The statutes of Missouri, for salutary reasons, permit for- eign corporations to do business in the State on prescribed conditions. If, despite such conditions, they can, by the in- sertion of clauses in their policy withdraw themselves from 1 Tayloe v. The Merchants F. Ins. Co., 9 How. 398. See also North- hampton Mut., etc., lua. Co. v. Tattle, 40 N. J. L. 476; Continental L. I. Ins. Co. V. Webb, 54 Ala. 688; Smith v. Mutual Life Ins. Co., 5 Fed. Rep. 582; Cromwell «. Royal Can. Ins. Co., 49 Md. 366; Todd v. State Ins. Co., 11 Phila. 355. 2 Fletcher ». New York Life Ins. Co., 4 McCrary, 440; 13 Fed. Rep. 528. 222 NATDRE AND SUBJECT-MATTER OP CONTRACT. § 177 the limitations of the Missouri statutes while obtaining all the advantages of its license, then a foreign corporation can, by special contract, upset the statutes of the State and become^ exempt from the positive requirements of law. Such a proposition is not to be countenanced. The defendant cor- poration chose to embark in business within this State under the terms and conditions named in the statute. It could not by paper contrivances, however specious, withdraw itself from the operation of the laws, by the force of which it could alone do business within the State. To hold other- wise would be subversive of the right of a State to decide on what terms, by comity, a foreign corporation should be admitted to do business or be recognized therefor within the State jurisdiction. Each State can decide for itself whether a foreign corporation shall be recognized by it, and on what terms. Primarily, a corporation has no existence beyond the territorial limits of the State creating it, and when it undertakes business beyond it does so only by comity. The defendant corporation having been permitted to do busiaess in Missouri under the statutes of the latter,, was bound by all the provisions of those statutes, and could not. by the insertion of any of the many clauses in itsforms^ of application, etc., withdraw itself from the obligatory force of the statute." ^ And a provision in a policy, issued in New York, but to be delivered in ]\Iissouri on payment of the premium there, requiring payment of three full an- nual premiums before the assured was entitled to temporary insurance is void if the statutes of Missouri provide that payment of two full annual premiums shall entitle the insured to such temporary insurance.'* § 177. Interpretation of Contracts of Insurance. — Contracts of insurance have no particular sanctity over 1 White V. Connecticxit Life Ins. Co., 4 Dill. 177; Lowell v. Alliance Life Ins. Co., 3 Cent. L. J. 699. ' Wall V. Equitable L. Assor. Soc, 32 Fed. Rep. 273. 223 ■§ 177 NATUKE AND SUBJECT-MATTEE OF CONTRACT. •other kinds of agreements, and the same rules of interpre- tation apply to all alike. ^ It was said in the early days that insurance contracts required the utmost good faith, because "the facts were of necessity less known to one party than to the •other, but this may be said of many different agreements, ^nd modern decisions have inclined to greater liberality to the insured than to the insurer. As in the case of statutes the principal, consideration is the intent, so in contracts of insurance the courts endeavor to ascertain what the parties intended by their contract,^ and this is, first of all, to be sought by taking the words in which the agreement is ex- pressed in their ordinary meaning, only resorting to other rules where there is ambiguity or doubt. The construction must be reasonable; as was said by Judge Nelson, in a -case * where the contract provided that in case of a loss that ■& certificate should be given by the nearest magistrate and the contention of the company was that this had not been done: " This clause of the contract ia to receive a reason- able interpretation; its intent and substance, as derived from the language used, should be regarded. There is no more reason for claiming a strict literal compliance with its i;erms than in ordinary contracts. Full legal effect should always be given to it, for the purpose of guarding the com- pany against fraud or imposition. Beyond this one would be sacrificing substance to form — following words rather than ideas." To the same purpose the Supreme Court of Illinois has said: * " The question here, as in other cases of -contract, is to arrive at the intention of the parties, and we .are not authorized, in striving to do so, to construe words otherwise than as conveying their plain, natural and obvi- ous meaning, unless, from a consideration of the entire evi- » Supreme Commandery, etc., v. Ainsworth, 71 Ala. 448. » Goodrich v. Treat, 3 Colo. 408; Foot v. Mtaa Lile Ins. Co., 61 N. Y. i671. » Tnrley r. North Am. F. Ins. Co., 25 Wend. 377* * Boyal Templars, etc., v. Curd, 111 111. 288. 224 NATDKB AND SUBJECT-MATTER OF CONTRACT. § 177 ^ence, it shall appear, this could not have been intended." ' The Supreme Court of ilissouri has also said : ^ " The con- struction of the language of the policy is to be determined, as in other contracts, by usage and common acceptation ; And the stipulations, though being of a character of warrant- ies and conditions, are to be reasonably construed with reference to the whole subject-matter, and not captiously or literally." * The modern decisions ^simply reiterate in sub- stance the words of Lord,Ellenborough : * "In the course of the argument it seems to have been assumed that some pe- culiai' rules of construction apply to the terms of a policy of assm-ance which are not equally applicable to the terms of other instruments and in all other cases; it is therefore proper to state upon this head, that the same rule of con- struction which applies to all other instruments applies •equally to this instrument of a policy of insurance, viz., that it is to be construed according to its sense and mean- ing, as collected in the first place from the terms used in it, which terms are themselves to be understood in their plain, ■ordinary and popular sense, unless they have generally, in respect to the subject-matter, as by the known usage of trade, or the like, acquired a peculiar sense distinct from the popular sense of the same words; or unless the context evi- dently points out that they must in the particular instance, -and in order to effectuate the immediate intention of the parties to that contract, be understood in some other special and peculiar sense. The only difference between policies •of assurance, and other instruments in this respect, is, that "the greater part of the printed language of them, being in- variable and uniform, has acquired from use and practice a 1 Peoria, etc., Ins. Co. c. WhitehUl, 25 HI. 466. ' Teeson C.Atlantic M. Ins. Co., 40 Mo. 33; 93 Am. Dec. 296. • St. John V. American Mut. Life Ins. Co., 13 N. T. 31 ; 64 Am. Dec. ■629; Insurance Co. v. Slangbter, 12 Wall. 404; Mark v. Mtsut Ins. Co., :29 Ind. 390; May on Ins., § 172. * Robertson v. French, 4 East, 136. 225 § 179 NATURE AND SUBJECT-MATTER OF CONTRACT. known and definite meaning, and that the words super- added in writing (subject, indeed, always to be governed in. point of construction by the language and terms with which they are accompanied) are entitled nevertheless, if there should be any reasonable doubt upon the sense and meaning of the whole, to have a greater effect attributed to them than to the printed words, inasmuch as the written words- are the immediate language and terms selected by the par- ties themselves for the expression of their meaning, and the printed words are a general formula adapted equally to their case and that of all other contracting parties upon similar occasions and subjects." * § 178. Interpretation of Contracts of Benefit So- cieties. — In the case of benefit societies the contract must be construed liberally in order to carry out the benevolent object of the creation of these organizations. It is to be- construed with reference to the statutes of the place of its organization, and it will never be presumed that the society intended to violate the law ; but, whenever a by-law seems- to go beyond the statute restrictions, such meaning will be given to it, if possible, as will make the two consistent, and generally the courts have manifested a liberality to these institutions and have looked upon them with favor .^ § 179. Construction wlien Xjanguage is Ambiguous. — It is also a rule of construction that where the language- used is ambiguous or inaccurate and susceptible of two in- terpretations, it shall be construed most favorably to the 1 Colt V. Commercial Ins. Co., 7 Johns. 385. 2 Elsey V. Odd-fellows, etc., Assn., 14,2 Mass. 224; American Legion of Honor v. Perry, liO Mass. 580; Ballon v. Gile, 60 Wis. 614:) Supreme Lodge, etc., v. Schmidt, 98 Ind. 374:; Brdmann v. Ins. Co., 44 Wis. 376; Covenant Mut. B A. o. Sears, 114 111. 108; Maneely b. Enights of Bir- mingham (Pa.), March, 1887; 9 Atl. Rep. 41; 7 Cent. Kep. 633; Splawa V. Chew, 60 Tex. 632; post, § 247. 226 NATCEE AND SUBJECT-MATTER OF CONTK'ACT. § 179 promisee in the obligation. The Court of Appeals of New York has stated this general principle very clearly in a case where the insurance company contended, that by one part- ner in a firm selling out to the others the condition in the policy, that if the property assured should be sold or con- veyed, then the policy should be void, had happened. In that case the court, in deciding in favor of the assured, held as follows: ^ " The design of the provision was, not to in- terdict all sales, but onljr sales of proprietary interests by parties insured to parties not insured. If the words were taken literally, a renewal of the policy would be required at the close of each day's sales. Indeterminate forms of expression, in such a case, are to be understood in a sense subservient to the general purposes of the contract. It is true that the language of the proviso against sales, was not guarded by a special exclusion of changes of interest as between the assured, or of the sales of merchandise in the usual course of their business ; but this was for the obvious reason that there was nothing in the tenor of the instrument to denote, that the application of the clause to such a case was within the contemplation of the underwriters. ' The matter in hand is always presumed to be in the mind and thoughts of the speaker, though his words seem to admit a larger sense ; and therefore the generality of the words used shall be restrained by the particular occasion.' ^ Thus, in an action on a life policy, containing a proviso that it should be void ' in case the assured should die by his own hands; ' it was held by this court, that though in terms it embraced all cases of suicide, it could not properly be ap- plied to self-destruction by a lunatic, as there was no rea- son to suppose that such a case was within the purpose of the clause or the contemplation of the parties.' ' AU words,' > Hoffman r. ^tna Fire Ins. Co., 32 N. Y. 412. » Powell on Cont. 389; "Van Hagen v. Van Rensselaer, 18 Johns. 423.. * Breasted v. Farmers' Loan and Trust Co., 4 Seld. 299. 227 § 179 NATURE AND SUBJECT-MATTER OF CONTRACT. eays Lord Bacon, ' whether they be in deeds or statutes, or otherwise, if they be general, and not express and precise, shall be restrained unto the fitness of the matter and the person.^ Reading the proviso as it was read by the par- ties, it is easy to discern the purpose of its insertion. It was to protect the company from a continuing obligation to the assured, if the title and beneficial interest should pass to others, whom they might not be equally willing to trust. Words should not be taken in their broadest import, when they are equally appropriate in a sense limited to the ob- ject the parties had in view. The terms of the policy were not such as would naturally suggest even a query in the minds of the assured, whether a transfer of interest as be- tween themselves would work a forfeiture of the insurance, and relieve the company from its promise to indemnify both — the buyer as well as the seller — the premium being paid in advance, and the risk remaining unchanged. One of two joint payees of a non-negotiable note would hardly be more surprised to be met with a claim, that by buying the interest of his associate he had extinguished the obliga- tion of the maker to both. It is a rule of law, as well as of ethics, that where the language of a promisor may be un- derstood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was under- stood by the promisee.^ It is also a fami^ar rule of law, that if it be left in doubt, in view of the seneral tenor of the instrument and the relations of the contracting parties, whether given words were ilsed in an enlarged or restricted sense, other things being equal, that construction should be adopted which is most beneficial to the promisee.' This rule has been very uniformly applied to conditions and pro- visos in policies of insurance, on the ground, that though 1 Bacon's Law Maxims, Reg. 10. » Potter »> Ontario Ins. Co., 5 Hill, U9; Barlow v. Scott, 24 N. T. 40. » Co. Lltt. 183; Bacon's La^ Maxims, Keg. 3; Doe ». Dixon, 9 East, 16; Marvin v. Stone, 2 Cow. 806. 228 NATURE AND SDBJECT-MATTKR OF CONTEACT. § 17i^ they are inserted for the benefit of the underwriters, their office is to limit the force of the principal obligation.^ In the case fif st cited '^ the action was for a marine loss, and one of the issues was, whether a recovery was barred by the entry of a ship into a blockaded port, such ports being excepted by the policy. The court held, that though the case was within the terms, it was not within the intent of the excep- tion ; and that as the risk contemplated in the clause was merely that of capture, the rule of liberal construction must be applied in favor of the promisee. The reason assigned by Chief Justice ]Marshall was that ' the words are the words of the insurer, not of the insured; and they take a par- ticular risk out of the policy, which but for the exception would be comprehended in the contract.' " ' Contracts of insurance, because they have indemnity for their object, are to be construed liberally so as to give them effect if possible.* If the policy contains two provisions, one favor- able to the assured and one unfavorable, they being incon- sistent and contradictory, that provision most favorable to the assured wiU be accepted and the other disregarded.^ Only a stern legal necessity will induce such a construction as will nullify the contract.* The rule that an insurance * Yeaton v. Fry, 5 Cranch, 341 ; Palmer v. Warren Ins. Co., 1 Story, 364; Pellyp. Royal Exchange Ins. Co., IBur. 349. * Yeaton c. Fry, 5 Cranch, 341. ' Merrick B. Germania Fire Ins. Co., 54 Pa. St. 277; Atlantic Ins. Co. «. Manning, 3 Colo. 226; Allen v. St. Louis, etc., Ins. Co , 85 N. Y. 473; Piedmont & Arlington, etc., Ins. Co. v. Young, 58 Ala. 476; Metropolitan L. Ins. Co. V. Drach, 101 Pa. St. 278; Symonds v. Northwestern M. L. Ins. Co., 23 Minn. 491; Niagara F. Ins. Co. v. Scammon, 100 111. 644. * State Ins. Co. v. Hughes, 10 Lea, 461; Brink v. Merchants, etc., Ins. Co., 49Vt.442; Miller c. Insurance Co., 12 W. Va. 116. • Northwestern M. L. Ins. Co. v. Hazelett, 105 Ind. 212; 55 Am. Bep. 192; Moulorc. American Life Ins. Co., Ill U. S. 335; National Bank n. In- surance Co., 95 U. S. 673; Teutonia F. Ins. Co. v. Mund, 102 Pa. St. 89. • Carson v. Jersey City Ins. Co., 14 Vroom (43 N. J. L.), 300; 39 Am. Rep 584; Franklin L. Ins. Co. v. Wallace, 93 Ind. 7; Burkhard v. Travelers Ins. Co., 102 Pa. St. 262; 48 Am. Bep. 205. 22t» § 180 KATURE AND SDIJJECT-MATTEE OF CONTACT. contract shall be construed most strongly against the in- surer, can only be resorted to when, after using such helps as are proper to arrive at the intent of the partieis, some of the language used, or some phrase inserted in the policy, is of doubtful import, in which case the rule should be applied because the insurer wrote the contract.* § 180. Contracts of Mutual and Stock Companies Con- strued Alike. — No distinction is made, as regards con- struction, between the policies of mutual and those of other companies. The fact that the policy is one of a mutual company cannot modify the construction which is to be given to the terms of the contract. While the relations of the parties are always to be considered m seeking the true interpretation of their language, their words, used for & definite purpose and applied to a transaction of well under- stood character, must be held to convey the meaning and force which is ordinarily attached to them. There is no reason why a contract of insurance between a mutual com- pany and its members should be given any significance dif- ferent from what would be the fair construction of a similar contract entered into between any partie's.^ The stipulations of a written contract are no less binding in a contract between a corporation and one of its members than in a contract made with a stranger, in each case the rules of construction are the-same.^ On this point it has been said: * " These benevolent associations or fraternities, not more than other parties to contracts, cannot be allowed to construe the words they use in making agreements other- wise than according to their plain and unambiguous mean- ing, in the English language they employ, whether of tha words of the contract itself or of the rules and regulations I root V. ^tna Life Ins. Co., 61 N. Y. 575; post, § 468. * ClufE V. Mutual Benefit Life Ins. Co., 99 Mass. 325. 8 Willcuts V. Northwestern Mutual Life Ins. Co., 81 Ind. 300. •• Wiggin V. Knights of Pythias, 81 Fed. Eep. 124. 230 NATURE AND SUBJECT-MATTER OP CONTRACT. § 181 •which become, by the principle they insist on, embodied in ■the contract as a part of it. They cannot 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 signification, known of all men who use the language. Legislatures and parliaments cannot 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." § 181. Other Papers Part of Contract, when. — It is not necessary that a written contract be wholly embraced in one document. Other papers may become part of such contracts by either being incorporated or being properly referred to therein. The question is one of intent and the intention is to be found in the contract, and a writing in- tended to be a part thereof may be incorporated in it by apt reference as well as by extended recital.^ The principle becomes chiefly important where application has been made in writing for insurance, and the inquiry is whether or not the application, by the terms of the policy, has been made part thereof so that its statements have become warranties. The subject will be further discussed when we come to con- sider the matters of warranty and representation,^ and ^t present it is enough to refer to it in a general way. It is not every reference in a contract to another writing that will make the latter a part of the contract ; there must suffi- ciently appear the intention to unite the two writings and merge them into one by reference or recital. Thus, where an application, by a member of a benefit society for a cer- tificate in the nature of a life insurance policy contained this clause, " I further agree, that should I, at any time, 1 Sheldon v. Hartford Fire Ins. Co., 22 Conn. 235; 68 Am. Dec. 420; Anderson v. Fitzgerald, i H. of L. Gas. '474; Carson v. Jersey City Ins.- Co., 43 N. J. L. 803; Bobertson v. French, 4 Bast, 130. ' Post, § 194, et seq. 231 § 181 NATURE AND SUBJECT-MATTER OF CONTRACT. violate my pledge of total abstinence, or be suspended or expelled for a violation of any of the laws of the order, or for non-payment of dues, etc., then all rights which either myself, the person or persons named in the certificate, my heirs, etc., may have upon the beneficiary fund of the order^ shall be forfeited," it was held that the application was a. part of the contract of insurance, and obligatory upon thfr beneficiary named in the certificate^ to whom payment was- promised on the death of the member, and that the lan- guage was in the alternative, making either or any one of the causes named, a ground of forfeiture of all right of recovery upon the certificate.^ So, where a policy of life insurance contained a stipulation that it should be void if a certain declaration made in the application by or for th& person whose life was insured, " and upon the faith of which this agreement was made, shall be found in any re- spect untrue," it was held that such declaration constituted a portion of the contract, and was made material by the- contract, and the only question of fact respecting the same was whether it was true or false.* The Supreme Court of Iowa, in a case where the policy stated that it was issued and accepted in consideration of the agreements made in the application of the assured, and it was provided in the application that a failure to pay the annual dues should avoid the policj-, said: ' "The policy, as we have seen,, was issued in consideration of the statements made in the application, and the application states that it forms the basis and consideration upon which the policy was issued, and that a neglect to pay the annual dues shall render the pol- icy void. We think these two papers should be read i o- gether, in order to ascertain what the contract between the 1 Supreme Council, etc., o. Curd, 111 111. 284. s Day V. Mutual Benefit L. Ins. Co., 1 McArthur, 41; 29 Am. Hep. 565; Kelsey v. Universal L. Ins. Co., 35 Conn. 225; Byers v. Insurance Co., 3& Ohio St. 606; Jeffries ». Lite Insurance Co. ,'22 Wall. 47. 8 Mandego v. Centennial, etc., Assn. 64 la. 134. " 232 NATURE AND SUBJECT-MATTER OF CONTRACT. § 182' parties is. The policy is based on the application. But for the latter the policy would never have been issued. • * * As the application is a part of the policy, it makes no dif- ference in what part of either paper the condition is found which renders the policy void. It maly be found partly ia one and partly in the other. The two papers, when read together form the contract. The rights of the parties in no other way can be ascertained." ^ § 182. The Same Suttject : Further Illastrations. — A^ paper drawn up in lead pencil, and containing statements made by the assured, and signed by him has been held to be a part of the policy if referred to therein by a number although it was addressed to another than the insuring com- pany.'^ Words and figures in the margin of a policy denot- ing that part of the agreed premiums have been paid may be considered part of it.* So an ad interim receipt reciting that the insurance under it is subject to the condition of the company's policies makes the conditions part of the con- tract.* So, in a mutual company the premium note ordina- rily forms a part of the contract,® but not so if the note is^ absolute on its face, only reciting that its consideration was a policy of insurance,* and it has been held that the appli- cation, policy and premium note are parts of the same transaction and should be construed together.' Indorse- ments on a policy are generally to be construed in connec- tion with its provisions,* and vrhere the body of the policy ' Foot V. iBtna Life Ins. Co., 61 N. Y. 675; Chrisman v. State Ins. Co. (Or.), 18 Pac. Rep. 466. s City Ins. Co. r.Bricker, 91 Pa. St. 488. ' Fierce o. Charter Oak Life Ins. Co., 138 Mass. 161. ' Goodwin v. Ins. Co., 16 Low. Can. Jur. 298. ' Scholtz V. Hawkeye Ins. Co., 42 la. 239; Mnrdock v. Chenango Ins.. Co.,2N.Y. 221. • American Ins. Co. t>. Gallahan, 75 Ind. 168. ' American Ins. Co. v. Stoy, 41 Mich. 385. • Alabama, etc., Ins. Co. v. Thomas, 74 Ala. 678 233 •f 183 NATURE AND SUBJECT-MATTER OF CONTRACT. refers to the annexed conditions, these, though printed on the back of the policy and unsigned, form a part of the ■contract,^ but the reference may be such as not to make the indorsement a part of the policy.'' It has been held also that where conditions are indorsed in small type upon the back of a policy they are not parts of it unless the attention ■of the insured is distinctly called to them at the time the •contract is made.^ § 183. Reference In Policy to Other Papers mnst be Plain to make Them a Part of It. — Where it is desired to make other papers, as in contracts of insurance the applicit- tion, a part of the policy the reference thereto in the latter must be plain. Where there are no words of reference to the application in the policy tbey form no part thereof. If the insurer wishes to make them so he must refer to them And cannot claim that by implication they are to be treated ■SLS a part thereof.* In the latter of the cases cited as sup- porting the foregoing proposition, the policy provided that an application or survey, if referred to therein, should be •considered part of the agreement, but no other reference being made, the court held that the application was not to he regarded as embodied in the policy. So, where the policy contained no reference to the application, but the latter pro- vided that it was part of the contract, it was held that this stipulation did not make it so.^ In the same way, if an in- dorsement or direction on the back of a policy is not referred to in the policy or by-laws of the company, there is nothing to show that the parties meant the indorsement 1 Kensington National Bank v. Yerkes, 86 Pa. St. 227 * MuUaney v. National, etc., Ins. Co., 118 Mass. 393. ' Bassell v. American F. Ins. Co., 2 Hughes, 531. * Merchants Ins. Co. ■». Dwyer, ITex. Unrep. Cas.445; Mooter. State Cns. Co. (la.), 34 N. W. Eep. 183; Weed v. Schenectady Ins. Co., T Lans. 452. * Brogan v. Manufacturers', etc., Ins. Co., 29 Up. Can. C. P. 414. 234 NATURE AND SUBJECT-MATTER OF CONTRACT. § 183 to be part of the contract and it will not be so regarded. ^ It has been held, where an application for a policy of life insurance contained an agreement that the answers and statements should " be the basis and form part of the con- tract or policy, and if the same be not in all respects true and correctly stated, the said policy shall be void according to the terms thereof," and the policy declared that the in- surance was " in consideration of the representations," etc., -and that fraud and intentional misrepresentations should viti- ate the policy, but did not otherwise refer to the application, that the agreement and statements in the application did not become a part of the policy.'' In that case the ■court said: "To hold that the statements of the proposal and application, notwithstanding the agreement therein above quoted, are not incorporated into the policy, and, therefore, are not warranties or conditions of insurance, is but to apply the rule that where the parties to an agreement have reduced their contract to writing, that writing, at law, •determines what the contract is, and evidence cannot be re- ceived to contradict, add to, subtract from or vary the terms of the writing. The policy in this case is the agree- ment for insurance, and it must be held to contain the agreement and aU the agreement of the parties to it. Though the proposal and application contain an agreement on the part of the insured, that the answers to the questions annexed to them and the accompanying statements, to- gether with the statements made to the examining physi- cian, shall be the basis and form part of the contract or policy, between the insured and the company, yet the policy 'does not, directly or indirectly, so declare, and it will be > Planters', etc., Ins. Co. v. Rowland, 66 Md. 240; Stone v. U. S. Casu- alty Co., 3i N. J. L. 371; Kingsley v. New Eng., etc., Ins. Co., 8 Cosh. 393; Ferrer B. Home Mut. Ins. Co., 47 Cal. 416; Farmers', etc., Ins. Co. «. Snyder, 16 Wend. 481. - American Popular, etc., Ins. Co. v. Day, 39 N. J. L. 89 ; 23 Am. Bep. 198. 235 § 185 NATURE AND SUBJECT-MATTEE OF CONTRACT. assumed that all previous negotiations have been superseded and that the policy alone expresses the contract of the par- ties. " 1 § 184. What Constitutes the Contract of Insurance. — The conclusion from the preceding statements is that the- policy of insurance, after it is issued, together with all other writings aptly referred to therein, constitutes the contract of the parties ; or in the case of benefit societies the certifi- cate, in connection with the laws of the order, contains^ such contract. It follows that all previous verbal stipula- tions not contained in the policy or certificate, nor referred to therein, are not to be considered in anyway as modifying such a written contract.^ And parol agreements as to fu- ture conduct, or subsequent promises resting on a new consideration, cannot constitute a part of the contract.^ § 185. After Enacted Laws of Benefit Society Gener- ally Bind its Members. — It is often the case that after a^ , person becomes a member of a benefit society the laws are changed and it then becomes a question to what extent the- original contract is thereby affected. As the laws of every benefit society enter into the contract between it and its- members, whether it be so stipulated or not in the certificate,*^ it follows that, when changes are made in the laws in the prescribed manner, the alterations are equally binding upon all the members. The rule must be understood with the- proviso or exception, which applies to all legislation alike^ that laws cannot be retroactive or be so construed as to cut 1 Pawson B. Watson, 1 Cowp. 785; Insurance Co. v. Mowiy, 96 TI. S- 511. * Insurance Co. v. Mowry, 96 IT. S. 544. ' Hartford F. Ins. Co. v. Davenport, 37 Mich. 609 ; Knickerbocker L. InS. Co. V. Heidel, 8 Lea, 488 ; Hearn v. Equitable, etc., Ins. Co., 3 ClifE. 328; post, §§ 221, 366, 428, 464. * Aiite, § 161. 236 NATURE AOT) 8UBJECT-SIATTEE OF CONTKACT. § 186 off rights already fixed. This rule may be also further modi- ded by the language of the contract in the particular case. § 186. An Extreme Case. — One of the earliest cases •was decided by the Supreme Court of Vermont where Judge Eedfield said: ^ " At the time the husband became a mem- ber of the society in 1862, the by-laws provided that each member paying the regular assessment, should ' be entitled to twenty-five cents per day during their sickness ; ' and ' to the widow of each member deceased, so long as she shall remain a widow, and shall enjoy a good reputation, twenty- five cents per day.' It was further provided that, ' so long &s there shall be twenty dollars in the treasury, the society oannot reduce its aid to the sick.' There is, also, a special provision for the manner of altering or changing the by- laws; and there is, also, a provision in the charter that the society may alter or change its by-laws. In August, 1869, the defendant corporation adopted a set of by-laws which provided that such widows shall receive twenty-five cents per day ' until she had received $200.' The plaintiff has received $200, in accordance with the latter by-law of the society. It is insisted that a right had become vested in the plaintiff (her husband died Jan. 5, 1869), to have and receive of the defendant twenty-five cents per day during her widowhood; and that it was not competent for the de- fendant to deny or diminish it. The means of making these contributions to the sick, and the widows of deceased members, were derived solely from voluntary assessments upon the members of the society and must be graduated by such assessments. And experience might prove that, with- out assessments greater than the members could bear, there must be a limitation to the stipend to widows. Prevailing fiickness among the members may have so exhausted the means of the society, that the provision for widows, must, 1 Fugnre v. Society St. Joseph, 46 Vt. 369. 237 § 187 NATURE AND SUBJECT-MATTER OP CONTRACT. necessarily, be modified, or it could not discharge the duties for which it was formed. It must be incident to the very nature and purpose of such an association, that it should have power to modify and change its by-laws so as to grad- uate its charities as experience and necessity may require. It cannot, indeed, pervert its contributions to subserve other ends and purposes; but the society may regulate the man- ner in which they shall carry out the purposes for which they associated. They provided that care for the sick should not be suspended or abridged while $20 remained in the treasury; thus, by necessary implication, conceding that other provisions might be made. Some sweeping disease might so exhaust the resources of the society, that stipends to widows in health must necessarily be suspended or much abridged; and this could be regulated only by practice and experience. The regulation 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 that 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 this 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." § 187. The Better View : After Enacted liaws mast not Affect Vested Biglits. — In a somewhat similar case in New York,^ an action was brought against a lodge of Odd-fel- ' Poultney «. Bachmann, 62 How. Pr. 466. 238 ^ NATUBB AND SUBJECT-MATTER OF CONTRACT. § 187 lows, by one of its members, to recover sick benefits to Tvhich h'e claimed to be entitled. The plaintiff had joined the lodge years before, when its by-laws provided that in case of sickness a member should receive a specified sum weekly during his sickness or disability. Another section empowered the lodge to alter or amend the by-laws when- ever deemed expedient. After the plaintiff had been taken sick, and while he was in receipt of the weekly sum allowed him, a by-law was passed reducing the amount of the pay- ments from four dollars to one doUar a week. The court held that the right of the lodge to change its by-laws was undoubted, but that the powers reserved must be exercised in a reasonable manner, and that it was an unreasonable interpretation to place upon the contract to hold, that after the contingency provided for had occurred so that the right of the member had become vested, that the lodge could re- pudiate its obligation either in whole or in part. In this case the court followed a previous decision,* where the articles of association provided that upon the death of one of its members, his widow should be entitled to receive four dollars monthly during widowhood. After the death of the plaintiff 's husband, who was a member of the society, the article was amended so as to entitle the widows to receive one dollar from each member of the society. Under these facts the court held that the new article was not retroactive and did not affect plaintiff 's rights. In a somewhat simi- lar case in Ohio,^ the facts were that the defendant was a benevolent society of which the plaintiff 's insane husband was a member, she being his guardian. By one of its by-laws, sick members were entitled to receive three dollars per week while' unable to pursue their usual business. In these by-laws the usual right to amend was reserved. Plaintiff 's husband had been a member for many years, and 1 Gnndlach v. Germania, etc., Assn., 4 Hun, 341. * Fellazzino v. German, etc., Society, 16 Cin. W. L. B. 27. 239 '§ 188 NATURE AND SUBJECT-MATTER OF CONTRACT. 1 in October, 1881, became unable to work. In October, 1882, the original by-laws were amended limiting tRe right to benefits to thirteen weeks in the year The wife sued for benefits under the old law, her husband never having aTjreed'to the change. The superior court, in upholding the claim said: " It is true, as argued by counsel for defendant, and held by the court in Vermont,^ that by the terms of the -agreement between the members, which constitutes the .society, and of that between the society and each member, which amounts to a policy cf insurance, a right to amend was reserved. But it was a right to amend the by-laws, not to repudiate a debt. A by-law provides what the rights of members shall be in certain events if they continue to pay their dues until such events happen; this, of course, by virtue of the reserved right, may be amended or repealed. But when the event happens, what was a contract depend- ■ing upon a contingency, becomes in law a debt. The right to modify a contract does not include the right to repudiate a debt, any more than the reserved right of a legislature to xepeal the charter of a corporation gives it the right to con- fiscate its property." ^ § 188. The Subject Discussed by the Supreme Court •of Alabama. — The subject was fully discussed by the Su- preme Court of Alabama ^ where a benefit society had is- sued a certificate, promising to pay a certain benefit in .€vent of the death of the member, and containinsr a condi- tion that it should be " subject to the laws of the order now in force or ' which may hereafter be enacted by the supreme commandery." After the issue of the certificate ' Fugure v. Society St. Joseph, 46 Vt. 362, supra. 2 St. Patrick's, etc., Society v. McVey, 92 Pa. St. 610; Byrne v. Casey .ort also obedience to the by-laws, so far as reasonable, * Bigelowo. Berkshire Life Ins. Co., 93 U. S. 284. 16 241 § 188 NATURE AND SUBJECT-MATTER OF CONTRACT. consistent with the charter and law of the land. We do not construe them as reserving, or as intended to reserve, to- the association the power to change or avoid its contracts, to lessen its responsibilities, or to divest its members of rights. This is not the proper office of a by-law; and from the general expressions to which we are referring, it can- not be fairly presumed or intended that it was contemplated to affect the members by other than such by-laws, as it wa& within the competency of the association to enact. But in addition to these, the averment of the plea is, that the cer- tificate was accepted by the assured ' subject to the laws of the order now in force, or which may be hereafter enacted by the supreme comm£(ndery.' These are words of large signification, and clearly express that the assured consented that the contract should be subject to future, as well as ex- isting by-laws. Parties may contract in reference to laws of future enactment — may agree to be bound and affected by them, as they would be bound and affected if such laws were existing. They may consent that such laws may enter int» and form parts of their contracts, modifying or varjdng them. It is their voluntary agreement which relieves the application ot such laws to their contracts and transactions from all imputations of injustice. • • • The members of associations, created for purposes and objects like those which seem to be the purposes and objects of this organization, may very properly be required to assent that the contract conferring upon them rights shall be subject to, and depend upon the future, as well as the ex- isting laws adopted by the governing power. The funda- mental principle of such organizations is the mutuality of duty and equality of rights of the membership, without re- gard to time of admission. This cannot well be preserved, if the members stipulating for benefits were not required to consent that they would be subject to future as well as ex- isting by-laws. Time and experience will develop a necessity 242 XATCRE AND StBJECT-WATTEK OF CONTRACT. § 188 for changes in the laws, and if the consent ^as not required, there would be a class of members boond by the changed laws, and a class exempt from their operation. The case before us is an illustration. Of t he legality and propriety of the provision relieTing the association from liability, if a member while insane deprived himself of life, there is no good reason to question. If no other reason could be giv- en, that it relieves the association from litigating with the representatives of a deceased member the distressing ques- tion of his sanity, would be sufficient. If the law was applied only to certificates issued subsequent to its enact- ment, there would be a class of members having certificates of greater value than the certificates held by another class; yet each class would be subject to the same assessments and the same duties. There is but little room, if any, for the apprehension, that advantage will be taken by the govern- ing body of the assent of the members to be bound and affected by subsequent laws, to impose upon him unjust bur- dens, or to vary the conteact, save so far as an alteration or modification of it may be promotive of the general good. iSubsequent or existing by-laws are valid only when consist- ent with ihe charter and confined to the nature and objects of the association. While a subsequent law, because of the assent of the member, may add new terms or conditions to a certificate, terms or conditions reasonably calculated to promote the general good of the membership, and may be valid and binding, it does not follow that a law operating a destruction of a certificate, or a deprivation of all right& under it, would be of any force.' [J_, KoiB >. Mvt. Ass's. Soc, 6 CSnncli, 39C. 243 CHAPTER VI. APPLICATION, WAERANTT, REPRESENTATION AND CONCEAL- MENT. s 190. Insurance Contract Result ol Proposal and Acceptance. 191. Difficulties in Constming Language of the Policy Relerrtng to the Application. 192. Early Interpretation Contrasted with Modern Construction. 193. Statutes on the Subject. 194. Warranty Defined. 195. DiflSculty of Determining wliat Amounts to Warranty. 196. Difference between Warranty and Representation. 197. Breach of Warranty Avoids the Contract. 198. Warranties not Favored at Law: Strict Construction. 199. Warranty never Created by Construction. SOO. Must be Exoress. 201. Affirmative and Promissory Warranties. 202. Construction of Warranties must be Reasonable. 203. Review of Rules of Construction. 204. Where Partial or no Answers are Made to Questions. 205. When Answers are not Responsive. 205a. Qualified Answers. 206. Representations. 207. Material and Immaterial Representations. 208. Affirmative and Promissory Representations. 209. False Representations Avoid Contract only when Material. 210. Immaterial whether False Representation is Intentional or Acci- dental. 211. Materiality of Representation Question of Fact. 212. Answers to Specific Questions always Material. 213. Representations to be Material need not always be of Facts Relat- ing Directly to the Risk. 314. Representations need only be Substantially True : Good Faith of Applicant. 215. Understanding of Applicant as to Effect of False Answers. 216. Answers to Questions in Applications for Membership inJBeneflt Societies Generally not Warranties but Representations. 217. Concealment. 218. Concealment of Material Fact will Avoid the Contract. 219. Questions of E^owledge, Intent and Materiality are for Jury. 244 WAERANTT AND REPRESENTATION. § 191 230. No Concealment -when Facts are Unknown to Applicant: Differ* ence between Representation and Concealment. 221, Error or Fraud at Agent in Preparing Application. 222. When Authority of Agent is Known to Applicant. 228. Answers to Referee : to Medical Examiner : Position of Latter. 224. Rules of Construction in Particular Cases. 226. Age. 226. Whether Applicant is Married or Single. 227. Residence. S28. Occupation. 229. The Dwight Case. 230. Answers in Regard to Parents, Relatives, etc. 281. Habits: Use of Intoxicants: Liquor, Opium, etc 282. Grood Health. 233. Latent Diseases Unknown to Applicant. 234. Disease. 235. Accident or Serious Injury. § 190. Insurance Contract Result of Proposal and Acceptance. — The contract of insurance is the result of a proposal, or application, upon the part of the insured, and its acceptance by the insurer. Whether life insurance be effected with stock or mutual companies, or through mem- bership in benefit societies, the process is much the same. There is first the proposal, or application, and then the acceptance. When accepted the application is followed by the issuance of the policy, or, in the case of bene- fit societies, the reception into membership, after which the certificate is furnished. The application is usually composed of several parts : there are the answers by the applicant to certain questions relating to age, family his- tory, etc. ; then is the certificate of the examining physician as to the results of the physical examination of the applicant, and lastly the certificate of a friend of the insured who oc- cupies the position of a referee. From this proposal or application, the insurer determines the value of the risk and whether or not he will accept it. § 191. DUQcnIties In Constrningr Langrnage of the Policy Referring to the Application. — The policy, issued 245 § 1!:>2 WARRANTY AND REPRESKNTATION. upon acoeptanoe of this proposal, generally refers in some way to the application. It is in construing the language used in such reference that some of the greatest difficulties have been experienced by the courts. The effort of the companies has been to incorporate the application in the contract and have the insured warrant the truth of all his statements. When these statements were true no differ- ences could well arise, but when the answers of the appli- cant to questions in the application were untrue, or equivo- cal, or partial, the only escape from loss of the insurance was to have the language of the policy so construed that a warranty of the statements of the application would not be held to exist. In the cases, therefore, the controversy has often been over this reference in the policy to the applica- tion, and whether the statements in the latter were war- ranties, which must be literally true, or representatioas which must be substantially true. § 192. Early Interpretation Contrasted with Modern ConstructioB. — In no branch of the law have the decis- ions been more numerous or conflicting than in cases relat- ing to applications for insurance, and it is difficult, if not impossible, to lay down any general rules which will apply in all cases. Says a standard writer on this subject: * *« The cases would have presented fewer difficulties of con- struction if the early jurisprudence had been less open to the admission of forfeitures of the policy, and more easily satisfied with a compliance with written stipulations sub- stantially equivalent to a literal one, when such construc- tion was not inconsistent with the express provisions of the contract. The recent jurisprudence tends to greater liber* ality of construction in favor of maintaining the contract. Such a rule may as well be applied to stipulations and re- citals in the policy as to representations preliminary and 1 FhllUps on Ins., § 63S. 246 WAKKANTY AND REPKE8ENTATION. § 192 collateral to it ; and it is more equitable after the policy has gone into effect and the underwriter has a right to re- tain the premium, that the contract should be continued in force as long as its being maintained is consistent with its -express provisions, and the underwriter is not thereby prej- udiced." The companies themselves forced the courts into this departure, because their policies were generally so in- tricate, in their wording, and their liability so hedged in and restricted by a multiplicity of covenants and conditions; the assured was tied down by so many warranties concern- ing immaterial matters, that in most cases, especially those involving fire insurance, the payment of the policy in event of loss was optional with the insurer, for an avenue of escape was generally open if he wished to avoid responsi- bility. Judicial sentiment, somewhat akin to popular sen- timent, began to set in against this perversion of justice, «.nd the absolute necessity for different reasoning appeared, for it was seen that it was unjust to absolve the insurer by ■a, rigid adherence to forms of words rather than the intent of the parties, when the assured had been persuaded into ■SL contract the terms of which he generally could not under- stand, and where, after he had paid in good faith the pre- mium asked, he discovered too late that he had stipulated away any probability of getting his insurance if a loss •occurred. The courts, therefore, began to condemn this scrupulously technical construction and to seek to avoid it. In one of the first cases, where this necessity for change was referred to, the Supreme Court of Iowa said: ^ " The business of insurance is rapidly increasing in magnitude and importance, and it is as essential to the companies them- selves as to the assured that the rules of law declared appli- cable to them should be based upon just and equitable principles, and administered in a manner in harmony with the doctrines of an enlightened jurisprudence. It is quite > Miller v. Mutual Benefit Life Ins. Co., 31 la. 226; 7 Am. Eep. 122. 247 § 193 WARRANTY AND REPRKSICNTATJON. time that the technical constructions which have pertained! with reference to contracts of this kind, blocking the path- way to justice, and leading to decisions opposed to the- general sense of mankind, should be abandoned, and that these corporations, grown opulent from thn scanty savings- of the indigent, should be held to the same measure of responsibility as is exacted of individuals." About the same time the Supreme Court of the United States prac- tically adopted the same doctrine, ^ and this doctrine, which had even earlier been favorably considered by a few courts, was still more generally accepted and approved, so that from reading some of the decisions in these cases, one would be justified in the conclusion that in many localities insur- ance companies, as a class, had made themselves disrep- utable in judicial eyes.^ § 193. Statutes on the Subject. — These judicial declara- tions and the influence of public sentiment have led to the enactment, in some States, of statutes which provide that no misrepresentation or false statement in an application for life insurance shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the happening of the contingency or event on which the policy was to become due and payable, and that M'hether it so contributed in any case shall be a question for the jury.' The effect of these laws has been to benefit the assured and prevent technical forfeitures.* 1 Insurance Co. v. Wilkinson, 13 Wall. 222. 2 American Central Ins. Co. v. Rothchild, 82 111. 166; New England^ etc., Ins. Co. ». Sehettler, 38 111. 166; Piedmont & Arlington L. Ins. Co. V. Young, 68 Ala. 476; Kausal v. Minnesota, etc., Assn., 31 Minn. 17} Rowley v. Empire Ins. Co., 36 N. Y. 550; Combs v, Hannibal, etc., Ins. Co., 43 Mo. 148; Insurance Co. v. WUkinson, 13 WaU. 222; Miller v. Mat. Ben. L. Ins. Co., 31 la. 226. 8 Eev. Stat. Mo. 1879, § 5976. Similar provisions are found in some States relating to fire Insurance. Ante, § 176. * The state of things out of which this necessity for the protection of the assured, in cases of fire insurance especially, sprang, has been thu» 248 WARRANTY AND REPRESENTATION. § 194 § 194. Warranty Defined. — The definition of warranty- given by Angell,^ and approved by the Court of Appeals of graphically portrayed (Delancey v. Bockingham, etc., Ins. Co., S2 N. H. 681) : " Some companies, chartered by the legislature as insurance com- panies, were organized for the purpose of providing one or two of their ofBcers, at headquarters, with lucrative employment, — large compensa- tion for light work, — not for the purpose of insuring property ; for the payment of expenses, not of losses. Whether a so-called insurance company was originally started for the purpose of insuring an easily earned income to one or two individuals, or whether it came to that end after a time, the ultimate evil was the same. Names of men of high standing were necessary to represent directors. The directorship, like the rest of the institution and Its operations, except the collection of pre- miums and the division of the same among the collectors, was nominal. Men of eminent respectability were induced to lend their names for the official benefit of a concern of which they knew and were expected to know nothing, but which was represented to them as highly advantageous to the public. There was no stock, no investment of capital, no indi- vidual liability, no official responsibility, — nothing but a formal organ- ization for the collection of premiums, and their appropriation as compensation for the services of its operators. The principal act of precaution was, to guard the company against liability for losses. Forms of applications and policies of a most complicated and elaborate > structure, were prepared and filled with covenants, exceptions, stipula- tions, provisos, rules, regulations and conditions rendering the policy void in a great number of contingencies. These provisions were of such bulk and character that they would not be understood by men in general,, even if subjected to a careful and laborious study; by men in general they were sure not to be studied at all. The study of them was rendered particularly unattractive, by a profuse intermixture of discourses on sub- jects in which a premium payer would have no interest. The compound, if read by him, would, unless he were an extraordinary man, be an inex- plicable riddle, a mere flood of darkness and confusion. Some of the- most material stipulations were concealed in a mass of rubbish, on the- back side of the policy and the following page, where few would expect: to find anything more than a dull appendix, and where scarcely any one would think of looking for information so important as that the com- pany claimed a special exemption from the operation of the general law of the land relating to the only business in which the company professed to be engaged. As If it were feared that notwithstanding these dis- couraging circumstances, some extremely eccentric person might attempt, to examine and understand the meaning of the involved and intricate net In which he was to be entangled, it was printed in such small type, and, 1 Angell on Ins., § 110. 249 § 194 WARRANTT AXD REPRESENTATION. New York,^ is that it is " a stipulation inserted in writing oa the face of the policy, on the literal truth or fulfillment la lines so loDig and so crowded, that the perusal of It was made physl- ■caUy difficult, palufol and injurious. Seldom has the art of typography been so successfully diverted from the diffusion of kn >wledge to the sup- pression of it. There was ground for the promium payer to argue that the print alone was eTidence, competent to be submitted to a jury, of a fraudulent plot. It was not a little remarkable, that a method of doing business not designed to impose upon, mislead and deceive litm by hiding the truth, practically concealing and misrepresenting the facts, and de- priving him of all knowledge of what he was concerned to know, should happen to be so admirably adapted to that purpose. As a contrivance for keeping out of sight the dangers created by the agents of the nominal corporation, the system displayed a degree of cultivated ingenni^, which, if it had been exercised in any useful calling, would have merited the strongest commendation. Traveling agents were necessary to apprise the people of their opportunities, and induce them to act as policy holders and premium payers, under the name of ' the insured.' Such ■emissaries were sent out; 'The solicitlug agents of Insurance com- panies swarm through the country, plying the inexperienced and unwary, who are ignorant of the principles of insurance law, and unlearned in the 'distinctions that are drawn between legal and equitable estates.' (Combs «. Hannibal, etc., Ins. Co., 43 Mo. 153.) The agents made personal and ardent application to people to accept policies, and prevailed upon large numbers to sign p.%pers (represented to be mere matters of form), falsi- fying an important fact by declaring that they made application for policies, reversing the first material step in the negotiation. An insurance company, by its agent, making assiduous application to an individual to make application to the company for a policy, was A sample of the crookedness characteristic of the whole business. When a premium payer met with a loss, and called for the payment promised in the policy, which he had accepted upon the most zealous solicitation, he was surprised to find that the volumiuonsi unread and unexplained papers had been so printed at headquarters, and so filled out by the agents of the company, as to show that he had applied for the policy. Tills, however, was the least of his surprises. He was informed that he had not only obttiined the policy on his own ap- .plication, but had obtained it by a series of representations (of which he had not the slightest conception), and had solemnly bound himself by a general assortment of covenants and warranties (of which he was nn- <:ouscious), tlie number of which was equaled only by their variety, and the variety of which was equaled only by their supposed capacity to defeat «very claim that could be made upon the company for the performance 1 Ripley v. iEtna F. Ins. Co., 80 N. Y. 136. 250 WABBASTT ASV BEFBESEKTATIOS. $ 194 of which the raHditj of the entire contract depends. The stipulation is oonaidered to be on the face of the polic7, al- though it may be written in the margin, or transversely, or on a subjoined paper referred to in the policy." Lord Mansfield has said,^ that in order to make written instmc- tions Talid and binding as a warranty, they most undoubt- edly be inserted in the policy. *' It is," said Lord EUenboroogh,^ " a question of construction in every case, whether a policy is so worded as to make the accuracy ol a bona fide statement a condition precedent, and the rules of eonstmction are the same in policies as in other written contracts." And Bunyon adds: ' " la order to make any .statements binding as warranties, they must appear upon the face of the instrument itself by which the contract of insurance is effected; they must either be expressly set out or by inference incorporated in the policy. If they are not so they are not warranties, bat representations."* of its part of the contract. He was further informed -that he had soc- -eeeded in his JVPll«r or other, with as little understanding of their effect as If they bad been printed in an onlmown and untranslated tongue, he might wen be astonished at tiie inrerted application, and the strange mnltitude of fatal r^resentations and ruinous covenants. But when he had time to realize his situation, liad heard the evidence of his having beset the invisible company, and obtained the polity by just such means as those by which be knew he had been induced to accept it, and listened to Use proof of his obtaining it by treachery and guilt, in pursuance of a premeditated scheme of fraud, vritii intent to swindle tiie company in Tegard to a lien for assessments or some other matter of theoretical ma- teriali^, he was measurably prepared for the next regular charge of having burned his own property." » Fawson ». Watson, 1 Cowp. 785. * Botiertson «. Fren«h, 4 East, 135. > Bunyon on Life Assurance, 34. * American Popular Ii. Ins. Co. v. Day, 30 N. J. L. 89; 33 Am. Bep. 196. 2.51 § 195 WARRANTY AND REPRESENTATION. The substance of the decisions relating to the subject of warranty in insurance contracts is that the truth of all statements warranted to be true is a condition precedent of the liability of the insurer; for, if the statements so war- ranted are untrue, there is no contract. § 195. Difficulty of Determiuing what Amounts to- Warranty. — It is not always easy to determine what lan- guage in an insurance contract amounts to a warranty. As was said by the Supreme Court of Massachusetts: •■ " There is undoubtedly some difficulty in determining by any simple and certain test what propositions in a contract of insurance constitute warranties and what representations. One general rule is, that a warranty must be embraced ia the policy itself. If, by any words of reference, the stipu- lation in another instrument, such as the proposal or appli- cation, can be construed a warranty, it must be such as^ make it in legal effect a part of the policy. In a recent case, it was said that 'the proposal or declaration for insur- ance, when forming a part of the policy, has been held to amount to a condition or warranty, which must be strictly true or complied with, and upon the truth of which, whether a statement be intentional or not, the whole instrument de- pends.' ' But no rule is laid down in that case for deter- mining how or in what mode such statements, contained in the application or answer to interrogatories, shall be em- braced or incorporated into the policy so as to form part, thereof. The difference is most essential, as indicated in the definition of a warranty in the case last cited, and a» stated by the counsel for the defendants in the prayer for instruction. If any statement of fact, however unimpor- tant it may have been regarded by both parties to the con- tract, is a warranty, and it happens to be untrue, it avoids ' Daniels v. Hudson R. J. Ins. Co., 12 Gush. 416; 69 Am. Dec. 192. ■ Vose V. Eagle Life & Health Ins. Co., 6 Cusli. 47. 252 WARRANTY AND REPRESENTATION. § 196 the policy; if it be ooDstrued a represeDtation, and is un- true, it does not avoid the contract if not willful or if not material. To illustrate this, the application in answer to an interrogatory is this : ' Ashes are taken up and removed in iron hods ; ' whereas it should turn out in evidence that -ashes were taken up and removed in copper hods, — per- haps a set recently obtained, and unknown to the owner. If this was a warranty, the policy is gone; but if a repre- sentation, it would not, we presume, affect the policy, be- cause not willful or designed to deceive, but more especially because it would be utterly immaterial, and wimldnot have influenced the mind of either party in making the contract or in fixing its terms. Hence it is, we suppose, that the leaning of all courts is to hold such a stipulation to be a representation rather than a warranty, in all cases where there is any room for construction ; because such construc- tion will, in general, best carry into effect the real intentand purpose which the parties have in view in making their con- tract." The trouble is caused by the difficulty of ascer- taining the intent of the contracting parties because of the ambiguous language often used by them. The insurer on the one hand wishes to have the terms of the contract seem liberal, and yet, in fact, admit of a strict construction favorable to him. The insured, on the other hand, gener- ally gives little thought to the conditions of the contract until a loss has occurred. § 196. Difference between Warranty and Representa- tion. — The Supreme Court of Connecticut ' states the difference between a representation and a warranty thus : *' The former precedes and is no part of the contract of in- surance, and need be only materially true ; the latter is a part of the contract and policy, and must be exactly and 1 Glendale Woolen Co. «. Protection Ins. Co., 21 Conn. 19 ; 61 Am. Dec. 809. 253 § 196 WARRANTY AND REPRESENTATION. literally fulfilled, or else the contract is broken and the- policy becomes void." "A warranty, in insurance," says the Supreme Court of Massachusetts,^ " enters into and forms a part of the contract itself. It defines, by way of particu- lar stipulation, description, condition, or otherwise, the precise limits of the obligation which the insurers undertake to assume. No liability can arise except within those limits. In order to charge the insurers, therefore, every one of the terms which define their obligation must be satisfied by the facts which appear in proof. From the very nature of the case, the party seeking his indemnity, or payment under the contract, must bring his claim within the provisions of the instrument he is undertaking to enforce. The burden of proof is upon the plaintiff to present a case in all respects conforming to the terms under which the risk was assumed. It must be not merely a substantial conformity, but exact and literal; not only in material particulars, but in those that are immaterial as well. A representation is, on the other hand, in its nature, no part of the contract of insur- ance. Its relation to the contract is usually described by the term ' collateral.' It may be proved, although existing only in parol and preceding the written instrument. Unlike other verbal negotiations, it is not merged in nor waived by the subsequent writing. This principle is in some respects- peculiar to insurance, and rests upon other considerations than the rule which admits proof of verbal representations to impeach written contracts on the ground of fraud. Repre- sentations to insurers, before or at the time of making a contract, are a presentation of the elements upon which te estimate the risk proposed to be assumed. They are the basis of the contract; its foundation, on the faith of which it is entered into. If wrongly presented, in any way ma- terial to the risk, the policy that may be issued thereupon will not take effect. To enforce it would be to apply the - Campbell c. New England Mat. L. Ins. Co., 98 Mass. 389. 254 WARRAKTT AND REPRESENTATION. § 196 insurance to a risk that was never presented.^ • • • When statements or engagements on the part of the in- sured are inserted, or referred to in the policy itself, it often becomes difficult to determine to which class they belong. If tiiey appear on the face of the policy, they do not necessarily become warranties. Their character will depend upon the form of expression used, the apparent purpose of the insertion, and sometimes upon the connec- tion, or relation to other parts of the instrument. If they are contained in a separate paper, referred to in such a way as to~make it a part of the contract, the same considerations of course will apply. But if the reference appears to be for a special purpose, and not with a view to import the separate paper into the policy as part of the contract, the statements it contains will not thereby be changed from representations into warranties. It is perhaps needless to add that verbal representations can never be converted into warranties otherwise than being afterwards written into the policy. • * • The application is, in itself, collateral merely to the contract of insurance. Its statements, whether of facts or agreements, belong to the class of ' representa- tions.' They are to be so construed, unless, converted into warranties by force of a reference to them in the policy, and a clear purpose, manifest in the papers thus connected, that the whole shall form one entire contract. When the reference to the application is expressed to be for another purpose, or when no purpose is indicated to make it a part of the policy, it wiU not be so treated.^ In Daniels V. Hudson River Ins. Co.,' the court says: 'If by any words of reference the stipulations in another instrument, Buch as the proposal or application, can be construed a war- I Eimball v. Mtasi Insurance C!o., 9 Allen, 540. » Jefierson Ins. Co. v. Cotheal, 7 Wend. 72 j 22 Am. Dec. 567; Snyder ». Farmers', etc., Co., 13 Wend. 92. > 12 Cnsh. 423; 69 Am. Dec. 192. 255 <§ 198 WAREANTr AND REPRESENTATION. ranty, it must be such as make it in legal effect a part of the policy.' " § 197. Breach of Warranty Avoids the Contract. — If the contract of life insurance therefore declares that the statements made in the application touching the subject of insurance are warranted to be true, and that the policy ^hall be void if they are untrue, the falsity of such state- ments will defeat the insurance. The parties having in their contract so agreed, and having been free to agree upon whatever terms and conditions they chose, the contract being a voluntary one,^ the courts have no other alternative than to give effect to the contract of the parties. The truth •of the fact warranted is a condition precedent to recovery.' § 198. Warranties not Favored at Law: Strict Con- struction. — In determining whether or not the language of the contract imports a warranty, the courts will endeavor to discover the intent of the parties, and with a disposition, if possible, to avoid holding the statements to be warranties. The strict rule of construction as to warranties does not find favor with modern judges. Many years ago a learned jurist said: * " The construction that our own, as well as the English courts, have unfortunately given to a warranty, is exceedingly strict, but it is too well established to be now changed by any exercise of judicial discretion. It is 1 Eeim v. Home Mut. F. Ins. Co., 42 Mo. 38; 97 Am. Dec. 291; Tal- ltim«>. New Tork U. Ins. Co., 7 Gray, 61; 66 Am. Dec. 462; Brown v. Eoger Williams Ins. Co., 5 K. I. 394; 'Wilson v. Mtoa, Ins. Co., 27 Tt. 99. 2 Fowler D. iBtna F. Ins. Co., 6 Cow. 673; 16 Am. Dec. 460; ^tna X. Ins. Co. V. France, 91 U. S. 510; Burrltt v. Saratoga, etc., Ins. Co., 5 HUl, 193 ; 40 Am. Dec. 345 ; American Popular L. Ins. Co. v. Day, 39 N. J. L. 89; 23 Am. Eep. 198; Fitch v. American Popular L. Ins. Co., 69 N. Y. 537; 17 Am. Eep. 372; Glutting ». Metropolitan L. Ins. Co. (N. J.), 11 Cent. Rep. 348; 13 Atl. Rep. 4; Jeffries v. Economical M^ut L. Ins. Co., 22 Wall. 47; also authorities cited ante, §§ 195, 196, and post, §§ 198, et seq. * Westfall V. Hudson River F. Ins. Co., 2 Duer, 495. 256 WARRANTY AND UEPRESEXTATION. § 198 not enough that a provision construed as a warranty in its spirit and substance is fulfilled ; its terms must be literally complied with. Its breach is not excused by showing that it was the result, not of choice, but of accident or necessity ; "that it worked no prejudice to the insurer, and not only had no influence on the loss that is claimed, but had no ten- dency to increase, or even vary, the risks that were meant to be assumed. If a breach, however slight, and confess- ^edly immaterial, is proved, the entire contract is at an end, the assured loses his indemnity, and the insurer retains his premium, and rejoices in his discharge. When the provis- ion that is claimed to be a warranty is at aU ambiguous, it :seems to us it is a reasonable presumption that the assured never meant to bind himself by a stipulation thus rigidly construed, and we cannot but think that this presumption, unless the words used are such as plainly, if not necessarily, to exclude it, ought to prevail." ^ The Supreme Court of the United States, in a case where the application was made a part of the policy and the assured covenanted that he had made a full and just exposition of the material facts in re- gard to the condition, situation and value of the property, in concluding that an overestimate of the value of the prop- erty did not vitiate the policy said: ^ " Two constructions ■of the contract may be suggested. One is to regard the warranty expressed in the policy as limited or qualified by the terms of the applicatron. In that view, the assured would be held as only warranting that he had stated all mate- rial facts in regard to the condition, situation, value and lisk of the property, so far as they were known to him. 1 Price V. Phoenix Mut. L. Ins. Co., 17 Minn. 497; 10 Am. Rep. 166; THillerc. Mutual Ben. Life Ins. Co., 31 la. 216; 7 Am. Rep. 122; Wheel- ^;on r. Hardnisty, 8 El. & B. 232; Stokes t>. Cox, 1 H. & N. Exch. 320; Anderson v. Fitzgerald, 4 H. of L. Cas. 484; 17 Jur. 995; 24 E. L. & E. 1; ■Jennings v. Chenango, etc., Ins. Co., 2 Denio, 78; Jefferson Ins. Co. «. Cotbeal, 7 Wend. 72: 22 Am. Dec. 571. * National Bank v. Insurance Co., 95 U. S. 678. IS 257 § 199 WAKRANTY AND KEPKESENTATION. This is, perhaps, the construction most consistent with the- literal import of the terms used in the application and the policy. The other construction is to regard the warranty as relating only to matters of which the assured had, or should be presumed to have had, distinct, definite knowl- edge, and not to such matters as values, which depend upon mere opinion or probabilities. But, without adopt- ing either of these constructions, we rest the conclusion already indicated upon the broad ground that when a policy 'of insurance contains contradictory provisions, or has been so framed as to leave room for construction, rendering it doubtful whether the parties intended the exact truth of the applicant's statements to be a condition precedent ta any binding contract, the court should lean against that construction which imposes upon the assured the obliga- tions of a warranty. The company cannot justly complain of such a rule. Its attorneys, officers or agents prepared the policy for the purpose, we shall assume, both of protect- ing the company against fraud, and of securing the Just rights of the assured under a valid contract of insurance.. It is its language which the court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself."^ § 199. Warranty never Created by Constraction. — It follows that a warranty will never be created by construc- tion. As has been said in a leading case upon the subject of warranty:* " The doctrine of warranty in the law of in- surance is one of great rigor, and frequently operates very harshly upon the assured. A warranty is considered as a condition precedent, and whether material or immaterial,. 1 Mutual, etc., Ins. Co. v. Bobertson, 59 HI. 123; Kentucky, etc., Ins. Co. V. Southard, 8 B. Mon. 634; Garcelon v. Hampden F.Ins. Co., 60 Me. 680; Monlorr. American Life Ins. Co., Ill U. S. 335; WoodrufE v. Im- perial F. Ins. Co., 83 N. Y. 133. ' Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; 22 Am. Dec. 671. 258 WARRANTY AND REPKE5ENTAT10N. § 199 as it regards the risk, must be complied with before the assured can sustain an action against the underwriters. A warranty, therefore, is never created by construction. It must either appear in express terms, aflSrmative or promis- sory, or must necessarily result from the nature of the con- tract. It must, therefore, appear on the face of the policy, in order that there may be unequivocal evidence of a stipu- lation, the non-compliance with which is to have the effect of avoiding the contrac^. It was once doubted whether it must not be incorporated into the body of the policy ; and it was contended that it was not sufficient for it to be writ- ten in the margin. But if it appears on the face of the policy, that is sufficient." ^ On this subject the Supreme Comt of Alabama says: * " While warranties are not favored, and will neither be created nor extended by con- struction, when a warranty is expressly and in ternis de- clared, its stipulations and conditions must be strictly complied with ; the question is disembarrassed of any con- sideration of materiality, the parties having made it mate- terial by their agreement."' "In considering the ques- tion," says the Supreme Court of Massachusetts,* " whether a statement forming a part of the contract is a warranty, it must be borne in mind, as an established maxim, that warranties are not to be created nor extended by construc- tion. They must arise, if at aU, from the fair interpreta- tion and clear intendment of the words used by the parties.* ' Hlgbie V. Gnardlan M. L. Ins. Co., 53 N. Y. 603; Hobby v. Dana, IT Barb. 114; Bunitt v. Saratoga, etc., Ins. Co., 5 Hill, 191; 40 Am. Dec- 345; Eipley v. Mtaa Ins. Co., 30 N. Y. 157. • Ala. Gold L. Ins. Co. v. Gamer, 77 Ala. 215. » Jeffries v. Life Ins. Co., 22 Wall. 47 ; ^tna Life Ins. Co. v. France- Ins., 91 U. S. 510; American Popular L. Ins. Co. v. Day, 39 N. J. L. 89 ^ 23 Am. Kep. 198. * Campbell v. New England M. L. Ins. Co., 98 Mass. 391. ' Daniels v. Hudson R. Ins. Co., 12 Cush. 416; 59 Am. Dec. 192 j Blood V. Howard Ins. Co., 12 Cusb. 472; Forbush v. Western Mass. Ins.. Co,, 4 Gray, 340. 259 ^ 200 WABEANTY AND EEPKE8ENTAT10N. Where, therefore, from the designation of such statements as ' statements ' or as ' representations,' or from the form in which they are expressed, there appears to be no intention to give them the force and effect of warranties, they will not be so construed.'" But where an application is re- ferred to in the policy as the basis of the contract and it is agreed that it shall be deemed and taken as part of the policy and as a warranty on the part of the assured, both the application and policy are to be construed together as one entire contract. And it has been held that the state- ment in a policy, which makes an application part of it, and which contains various warranties on the part of the assured, and the further statement therein that any false or untrue answers or statements, material to the hazard of the risk, shall render the policy void, does not defeat or limit the express warranties contained in the policy.^ § 200. Must be Express. — Warranties, therefore, never being implied, must be express. " The stipulations in poli- cies," says Judge Savage,' "are considered express war- ranties; an express warranty is an agreement expressed in the policy whereby the assured stipulates that certain facts relating to the risk are, or shall be true, or certain acts relating to the same subject have been, or shall be done. It is not requisite that the circumstance or act warranted should be material to the risk ; in this respect an express warranty is distinguished from a representation. Lord Eldon says: * It is a first principle in the law of insurance, that if there is a warranty, it is a part of the contract, that the matter is ' Honghton v. Manufactnrers' Ins. Co., 8 Met 114; Jones' Manufac- turing Co. V. Manufacturers' Ins. Co., 8 Cush. 83; 54 Am. Dec. 742; Towne «. FUchburg Ins. Co., 7 Allen, 51; Price v. Fhcenlx M. L. Ins. Co., 17 Minn. 4;>7; Fitch v. American Popular L. Ins. Co., 59 N. Y. 557; 17 Am. Eep. 372. 2 Chrisman v. State Ins. Co. (Or.), 18 Pac. Eep. 466; anu, §§ 196, 197, 198. ■» Duncan v. Sun F. Ins. Co., 6 Wend. 494. 2(50 WARRANTY AND REPRESENTATION. § 201 sach as it is represented to be. The materiality or imma- teriality signifies nothing. The only question is as to the mere fact.' " § 201. AfflrmatlTe and Promissory Warranties. — War- ranties may be either affirmative, that is those which al- lege affirmatively that certain facts are true; or prom- issory, that is, those which undertake that certain thinors shall or shall not be done. Promissory warranties are often also called executory. The distinction is thus il- lustrated by the Supreme Court of lowa:^ " The policy in this case contains both affirmative and executory warran- ties: 1. The acceptance of the policy with the clause that the lower story of the building insured was, at the time the policy was effected, occupied for stores, was an affirmative or express warranty that the same was at the time so occu- pied. And if the representation was false, in other words, if the lower story was not then so occupied, whether ma- terial to the risk or not, would avoid the policy. 2. The upper portion of this building insured, as set forth in the policy, was to remain unoccupied during the continuance of the policy. This portion is promissory or executory, and must be strictly complied with on the part of the assured, or the policy will be avoided, whether material to the risk or not. The distinction between the affirmative, or ex- press, and promissory, or executory, warranties is very perceptible in this case. The former represents that a cer- tain fact did exist at the time the policy was effected ; and the latter, that a certain thing should exist during the con- tinuance of the policy — both made equally material by the parties themselves, and each fatal to the assured if false or not executed." The promise which is to be a warranty may frequently consist only of an expression of intention. Language in a policy which imports that the assured intends I stout V. City Fire Ins. Co., 12 la. 371; 79 Am. Dec. 539. 261 § 202 WARRANTY AND KKPKESENTATION to do or not to do an act which materially affects the risk involves generally an engagement to perform or omit such act. If the assured would reserve a right to change such intention, he must employ explicit language to denote the reservation.^ But this intent must always appear from the language used and the courts will not infer a warranty in promissory any more than in affirmative statements. As where the application stated that the premises insured were "occupied by Goodhue as a private dwelling" the New York Court of Appeals^ held that " here was an affirmative stipulation, that the house was then occupied by Goodhue, but not a promissory agreement that he should continue to occupy it. If it had been the intention of the parties to make it a condition that he should! remain the occupant during the term of the insurance, it would have been easy to say so, and there is no good reason in this case for sup- posing the pai-ties intended what they have not expressed." • § 202. Construction of Warranties Must be Keason- able. — The construction of all warranties must be reason- able. A distinction, according to the later authorities, must be observed between those descriptive particulars, which are inserted in the contract merely for the purpose of identification, and those which are designed to indicate the nature, extent and incidents of the risk. These two classes of statements are to be construed with reference to the pur- pose for which they are respectively made. These distinc- tions necessarily oftener arise in cases of fire and marine than in those of life insurance.* As in all other matters of construction the object to be attained is to ascertain the 1 Bilbrough v. Metropolis F. Ins. Co., 5 Duer, 587. " O'Neil V. Buffalo P. Ins. Co., 3 N. T. 123. ' Benham o. United G. & L. Ass. Co., 7 Exch. 744; 14 E. L. & E. 524; 16 Jur. 691; 21 L.J. Ex. 317. * See note to Fowler o. Mtna. F. Ins. Co., 6 Cow. 673; 16 Am. Dec 466, and cases cited. 2G2 WARRANTY AND REPRESENTATION. § 203 intent of the parties, and warranties will never be held to ■exist except upon a fair interpretation and clear intendment •of the words of the parties. The construction will never be forced.^ § 203. Review of Rales of Constraction. — The mod- ern rules of construction of insurance contracts in regard to warranties and representations are thus summarized by the Supreme Court of Alabama, in a recent case: ^ "In construing contracts of insurance, there are some settled rules of construction bearing on this subject which we may briefly formulate as follows: 1. The courts, being strongly inclined against forfeitures, will construe all the conditions of the contract, and the obligations imposed, liberally in favor of the assured, and strictly against the insurer. 2. It requires the clearest and most unequivocal language to create a warranty, and every statement or engagement of the assured will be construed to be a representation, and not a warranty, if it be at all doubtful in meaning, or the ■contract contains contradictory provisions relating to the subject, or be otherwise reasonably susceptible of such con- struction. The court, in other words, will lean against that •construction of the contract which wUl impose upon the as- sured the burdens of a warranty, and will neither create nor extend a warranty by construction. 3. Even though -a warranty in name or form be created by the terms of the contract, its effect may be modified by other parts of the policy, or of the application, including the questions and answers, so that the answers of the assured, so often merely categorical, will be construed not to be a warranty •of immaterial facts stated in such answers, but rather a warranty of theassured's honest belief in their truth; or in ' Conover v. Mass. Mut. L. Ins. Co., 3 Dill. 217; Campbell v. New England L. Ins. Co., 98 Mass. 381. ^ Alabama Gold L. Ins. Co. v. Johnson, 80 Ala. 467; 2 South. Bep. 128 9 Heisk. 606; 24 Am. Bep. 344, * 3 Add. Contr. (Morgan's ed.), § 1123; Price r. Phoenix M. L. Ins. Co., 17 Minn. 497 ; Fitch v. American, etc., Ins. Co., 59 N. T. 557. 267 § 203 WARRANTY AND ItEPKESENTATION. only of material circumstances or information with which the company should in good faith be made ncquainted that will vitiate the policy and cause a forfeiture. It cannot be supposed that one who, for the purpose of procuring in- surance, alleges himself to be in good health, shall be^ understood as warranting himself to be in perfect and ab- solute health; for this is seldom, if ever, the fortune of any human being: and ' we are all born,' as said by Lord. Mansfield in Willis v. Poole, ' ' with the seeds of mortality in us.' These inquiries as to symptoms of diseases as said by Mr. Parsons, therefore must mean whether they ' hav& ever appeared in such a way, or under such circumstances,, as to. indicate a disease which would have a tendency to shorten life ; ' and he adds : ' It is with this meaning the question is left to the jury.' ^ It has accordingly been held in an English case, cited and approved both by Mr. Parsons^ and Mr. Addison, that even a warranty that the person whose life is insured ' has not been afflicted with, nor is- subject to vertigo, fits,' etc., would not be falsified by hav- ing had one fit. To forfeit the })olicy on this ground he- mast have been habitually or constitutionally afflicted with fits. ' Even then,' adds Mr. Parsons, ' we apprehend th& materiality of the fact would be taken into consideration; that is, for example, the policy would not be defeated by proof that the life insured, long years before, and when a. teething child, had a fit.' » * » Our conclusion is that the following is a just and fair construction of the contract of insurance under consideration: 1. That the answers of the assured were not absolute warranties, but in the nature of representations ; or, if warranties, they are so modified by other parts of the contract as to be warranties only of an honest belief of their truth. 2. That any untrue statement or suppression of fact, material to the risk as- » 2 Parke Ins. 650. « 2 Pars. Contr. 468, 471; 3 Add. Contr., § 1233. 268 WARRANTY AND REPRESENTATION. § 204 «ured, win vitiate the policy, and thus bar a recovery, whether intentional or within the knowledge of the assured or not. 3. If immatmal, such statement, to avoid the policy, must have been untrue within the knowledge of the jkssured; that is, he must either have known it, or have been negligently ignorant of it. 4. The terms of the contract rebut the implication that all symptoms of diseases inquired about were intended to bu made absolutely material, unless they had once existed in such appreciable form as would affect soundness of health, or have a tendency to shorten life, and thus affect the risk." § 204. Where Partial or no Answers are Made to Questions. — It may happen that a question in an applica- tion for insurance is either partially answered or is not Answered at all. In the latter case there is no warranty that there is nothing to answer.^ " And so," says the Court of Appeals of New York,^ " in the case of a partial answer, the warranty cannot be extended l)eyondthe answer. Fraud may be predicated upon the suppression of truth, but breach of warranty must be based upon the affirmation of something not true." The question has most frequently come up where the applicant has stated the name of a single physician as his attendant where he has had others ; in such cases the rule has been laid down that where the answer is full and complete so far as it goes and does not purport to cover all possible cases, the company should exact a fuller answer if it desired it. In one case the interrogatory was, " Name and residence of the family physician of the party, or of one whom the party has usually employed or consulted?" and the answer was ■'•Refer to Dr. A. T. Mills, Corning, N. Y." The court of Appeals of New York said in regard to this:' "The > Liberty Hall v. Insurance Co., 7 Gray, 261. » DiUeber r. Home Life Ins. Co., 69 N. Y. 256; 25 Am. Rep. 182. » Hi§gins V. Phoenix Mut. L. Ins. Co., 74 N. Y. 9, 2Gy § 204 WAEKANTT AND REPRESENTATION. language of the answer is equivocal. It neither declares Dr. Mills to have been, or to be the family physician of the applicant, or that he was the physician whom he had usually employed or consulted, or if he occupied either relation, which it was. It is only upon the ground that the state- ment constitutes an express warranty, and was untrue in fact, that the defense can be sustained. The answer is not responsive in terms to the interrogatory, and does not pro- fess to give the information asked. If it was not satis- factory to the defendant, a fuller and more explicit answer should have been required. A breach of warranty as upon the affirmance of an untruth cannot be alleged in respect of an answer which does not profess to state any fact. The words of the answer cannot be extended by implication in aid of a defense founded upon a technical breach of a warranty beyond the fair import of its language and the intent of the party as indicated by its terms. It is always within the power of the insurer to have an explicit and clear affirmation as to every fact material to the risk, and if the answers to the interrogatories are not full, and do not give the information called for, they cannot be treated as affirmations of facts not stated, although called for by the interrogatories.''^ The subject is further elucidated by the Supreme Court of the United States which says :^ " Where an an-!wer .of the applicant to a direct question of the insurers purports to be a complete answer to the question, any substantial misstatement or omission in the answer avoids a policy issued on the faith of ihe application.* But where upon the face of the application, a question appears 1 Baker v. Home Life Ins. Co., et N. Y. 648; Edington v. Mnt. L. Ins. Co., 67 N. Y. 185; Fitch v. American Ins. Co., 69 N. Y. 557; Penn. Mnt. L. Ins. Co. v. Wiler, 100 Ind. 92 ; American Ins. Co. «. Mahone. 56 Miss. 180. 2 Phoenix Mut. L. Ins. Co. v. Kaddin, 120 TJ. S. 183; 7 Snp. Ct. Rep. 500. » Cazenove v. British, etc., Ass. Co., 29 L, J. C. P. (n. s.) 160; 6 Jur. ^N. s.) 826; 8 W. B. 243 Ex. Ch. 210 WAURANTY AND REPRESENTATION. § 205- to be not answered at all, or to be imperfectly answered,, and the insurers issue a policy without further inquiry,, they waive the want or inaperfection in the answer, and render the omission to answer more fully immaterial.^ The distinction between an answer apparently complete, but in fact incomplete, and therefore untrue, and an answer man- ifestly incomplete, and as such accepted by the insurers^ may be illustrated by two cases of fire insurance, which are govered by the same rules in this respect as cases of life insurance. If one applying for insurance upon a building against fire is asked whether the property is in- cumbered, and for what amount, and in his answer discloses one mortgage when in fact there are two, the policy issued thereon is avoided.* But, if to the same question he merely answers that the property is incumbered, without stating the amount of incumbrances, the issue of the policy with- out further inquiry is a waiver of the omission to state the amount.'"* The English doctrine in regard to incomplete answers is more favorable to the companies.* §205. When Answers are not Responsive. — Where the answers to questions in the application are not respon- sive they will not be considered' warranties although made so by the policy. This was held in a case in the Federal court in Ohio,* where the question was whether the father or certain other relatives had been afflicted with certain ' Conn. Mut. L. Ins. Co. c.Luchs, 108 U. S. 498; Hall c. People's Ins- Co., « Gray, 185; Xorillitrd Ins. Co. t>. McCnlloch, 21 Ohio St. 176; American Ins. Co. v. Mahone, 56 Miss. 180; Carson v. Jersey City Ins. Co., 43 N. J. L. 300; s. e. 44 N. J. L. 310; Lebanon Ins. Co. c. Kepler,. 106 Pa. St. 28. • Towne 0. Fitchburg Ins. Co., 7 Allen, 51. See also Wright v. Equi- table Life, etc.. Soc, 50 How. Pr. 367. > Nichols r. Fayette Ins. Co., 1 Allen, 63. * London Ass. a. Mansel, 11 Ch. D. 363; 48 L. J. Ch. 381; 41 L. T.. 226; 27 W.K.444. ^ Baell V- Conn. Mnt.L. Ins. Co., 2 Flipp. 9. 271 § 205a WARRANTY AND REPRESENTATION. diseases, and continued, " If so, state full particulars of each case?" The reply was: "No, father died from ex- posure in water, age 58." In fact the father died at the age of 30. The court held the latter part of the answer not responsive and therefore a representation, stating the rule thus: " Where the answers are responsive to direct questions asked by the insurance ccimpany, they are to be regarded as warranties, and where they are not so respon- sive, but volunteered without being called for, they should be construed to be mere representations. The part of the Answer in question in this case in reference to the age of the father at death, being a mere representation, does not con- stitute a defense unless it appears to have been material as well as false." ^ § 205a. Qualified Answers. — If the answers of the ap- plicant to the questions in the application are limited or Clapp V. Mass. Benefit Assn. (Mass.), 6 N. Eng. Bep. 103; 16 jr. East. Bep. 433. * See also Fisher v. Crescent Ins. Co., 33 Fed. Bep. 549. * Amonldon Ins., § 182; Bliss on Life Ins., § 33. * 2 Dner on Ins. 644. ' Campbell v. New England Mnt. L. Ins. Co., 98 Mass. 381; Daniels «. Hudson Hirer Ins. Co., 12 Cash. 41G; 59 Am. Dec. 192. 18 273 § 208 MARKAXTY AND KEl'KESENTATION. of Alabama happilj'^ says: ^ "A representation is not, strictly- speaking, a part of the contract of insurance, or of the es- sence of it, but rather something collateral or preliminary^ and in the nature of an inducement to it. A false repre- sentation, unlike a fiilse warranty, will not operate to vitiate the contract or avoid the policy, unless it relates to a fact actually material, or cleaa-ly intended to be made mate- rial by the agreement of the parties. It is sufficient, if representations be substantially true. They need not be strictly nor literally true. A misrepresentation renders the policy void on the ground of fraud, while a non-compliance with a warranty operates as an express breach of the con- tract." ^ § 207. Material and Immaterial Representations. — The natural division of representations is into those which are material and those which are immaterial, the former having a tendency to influence the insurer to make the con- tract, and the latter not having any influence upon him. These definitions become more clear as we discuss particu- lar examples. § 208. Affirmative and Promissory Representations. — According to some authorities representations are divided, like warranties, into affirmative and promissory. It has, however, been denied that there is any such thing as a promissory representation, although the text-book writers have approved the division.^ It has been said* that, " Lan- guage in a policy which imports that it is intended to do or omit an act which materially affects the risk, its extent or 1 Alabama Gold Life Ins. Co. v. Johnson, 80 Ala. 467 ; 2 South. Eep. 128. ' Price V. Phoenix Mut. Ins. Co., 17 Minn. 497; 10 Am. Rep. 166; Fisher v. Crescent Ins. Co., 33 Fed. Rep. 549; Moulor v. Am. Ins. Co., Ill U. S. 335; Phoenix Mut. L. Ins. Co. v. Baddin, 120 U. S. 183; Thomsoa V. Weems, 9 App. Cas. 671. 8 May on Ins., § 182. * Bilbrough ». Ins. Co., 5 Duer, 587. 274 WAKltAXTT AND KElMJESEXTATIOJf. § 208 nature, is to be treated as involving an engagement to do or omit such act." This statement has been approved by the Federal court in at least one case * where the engagement was that the policy should be void " if any of the statements and declarations made in the application for this policy, upon the faith of which this policy is issued, shall be found in any respect untrue." In the application the language used was that the applicant " declares " that he does not now and will not practice any pernicious habit tending to shorten life. The court held a< follows: " In this policy such statement and declaration is, in substance, incorporated in- to and made part of the policy. The language in regard to future pernicious habits is far more than a declaration of intention. It is a positive representation of a future fact, and is not to be regarded as an expression of the expectation or belief of the insured. I am, therefore, led to the conclusion that the clause in the policy imports an agreement that fu- ture pernicious habits shall not be entered into, and that if the insured thereafter practices any pernicious habit that obviously tends to shorten life, the policy will be thereby avoided." The Supreme Court of Pennsylvania, upon the same state of facts came to a different conclusion. The defendant in both cases was the same and the language of the application and policy identical. In this case ^ the court said: "It is unnecessary to discuss the question as to whether the declarations of the insured as to existing facts in his application constitute a warranty. The authorities are by no means uniform on this point. Our own case of the Washington Life insurance Company w. Schaible,* holds that they do not constitute such warranty. Where, how- ever, the policy has been issued upon faith of such repre- sentations, and they are false in point of fact, the better 1 Schiatz V. Mat. Life Ins. Co., 6 Fed. Bep. 672. * Knechtc. Mutual Life Ins. Co., 90-Pa. St. 120; 35 Am. Bep. 641. » 1 W. N. C. 369. 275 § 208 WAEKANTT AND EEPKESENTATIOX. opinion seems to be that the policy is avoided. And this is so even where the false statement is to a matteiTnot mate- rial to the risk.i In such case the agreement is that if the statements are false, there is no insurance; no policy is made by the company, and no policy is accepted by the insured. In the case in hand the policy attached. There was nothing to avoid it ab initio. Were the mere declara^ tions by the insured in his application, as to his future in- tentions, and his failure to carry out his declarations, or to comply with his intentions as to his future conduct, suffi- cient to work subsequent forfeiture of the policy? In no part of the application did the assured covenant that he would not practice any pernicious habit. Nor did he prom- ise, agree or warrant not to do so. He declared that he would not. To declare, is to state ; to assert; to publish; to utter; to announce; to announce clearly some opinion or resolution; while to promise is to agree ; 'to pledge one's self; to engage; to assure or make sure; to pledge by contract.' ^ There is no clause in the policy which provides that if the assured shall practice any pernicious habit tend- ing to shorten life, the policy shall ipso facto become void. There is only the stipulation that, ' if any of the statements or declarations made in the application * * • shall be found in any respect untrue, the policy shall be null and void.' This evidently referred to a state of things existing &t the time the policy was issued. As to such matters, as I have already said, there was no untrue statement. But the assured declared, as a matter of intention, that he would not practice any pernicious habit. Was this declaration of future intention false? There is no allegation, much less proof, that 'it was so. The assured might well have in- tended to adhere to his declarations in the most perfect good faith, yet in a moment of temptation have been overcome 1 Jeffries v. Life Ins. Co., 22 Wall. 47. ^ Worcester. 276 WARRANTY AXD REPRESENTATION. § 208 by this insiduous enemy (intemperance). In the absence of any clause in the policy avoiding it in case the assured should practice any such habit, and of any covenant or warranty on his part that he would not do so, we do not think his mere declaration to that effect in the application sufficient to avoid the policy." In a Massachusetts case,^ the Supreme Court of that State said: " The word, ' representations,' has not always been confined in use to representations of facts existing at the time of making the policy; but has been sometimes ex- tended to statements made by the assured concerning what is to happen during the term of the insurance ; in other words, not to the present, but to the future; not to facts which any human being knows or can know, but to matters of expectation or belief, or of promise and contract. Such statements (when not exjiressed in the form'-of a distinct and explicit warranty which must be strictly complied with), are sometimes called 'promissory representations,' to distinguish them from those relating to facts, or ' affirm- ative representations.' And these words express the dis- tinction; the one is an affirmation of a fact existing when the contract begins; the other is a promise, to be performed after the contract has come into existence. Falsehood in the affirmation prevents the contract from ever having any life ; breach of the promise could only bring it to a prema- ture end. A promissory representation may be inserted in the policy itself ; or it may be in the form of a written application for insurance, referred to in the policy in such a manner as to make it in law a part thereof ; and in either case the whole instrument must be construed together. But this written instrument is the expression, and the only evidence, of the duties, obligations and promises to be per- formed by each party while the insurance continues. To make the continuance or termination of a written contract, » Kimball v. JEtna Ins. Co., 9 Allen, 542. 277 § 209 WARRANTY AND UEPKESENTATION. which has once taken effect, dependent on the performance or breach of an earlier oral agreement, would be to violate a fundamental rule of eridence. A representation that a fact now exists may be either oral or written ; for if it does not exis^;, there is nothing to which the contract can apply. But an oral representation as to a future fact, honestly made, can have no effect ; for if it is a mere statement of an expectation, subsequent disappointment will not prove that it was untrue ; and if it is a promise that a certain state of facts shall exist or continue during the term of the policy, it ought to be embodied in the written contract." This opinion goes on to state that if the oral promise be made mala fide, and with the intention to mislead and de- ceive, the fraud will have the same effect as the material falsity of an affirmative representation. But if made bona fi,de, and without intention to mislead, or deceive, it cannot be set up to avoid a contract. Only those promissory rep- resentations are available for such a purpose which are reduced to writing and made part of the contract, thus becoming substantially, if not formally, warranties.^ It is eminently reasonable, as well as consistent with authority, that promissory representations, when false, should avoid the contract only when they are either mada under such circumstances that their breach substantially amounts to a fraud upon the insurer, or else when they are incorporated into the policy in such way as to become virtually war- ranties.^ § 209. False Representations avoid contract only wben Material. — We have seen that in case of warranties the question of materiality cannot arise because the truth of the facts is made material by the contract itself, but, in- asmuch as representations are collateral and form only an / ' Prudential Assurance Soc. v. Mtoa, L. Ins. Co., 52 Conn. 879; -23 Blatchl. 223; 23 Fed. Rep. 438; May on Ins., § 182. 2 See post, § 323. 278 WARRANTY AND REPRESENTATION. § 210 inducement, to the contract, they avoid it only when mate- rial, or in other words have led the insurer into an engage- • ment he would have been less likely to have entered into if the statement or representation had not been made or if he had known that the representations were untrue. The Su- preme Court of Massachusetts says on this point: ^ " When the insurer seeks to defeat a policy upon this ground, (false representations) his position in court is essentially different from that which he may hold upon a policy con- taining a like descripti6n of the risk as one of its terms. It is sufficient for the plaintiff to show fulfillment of all the •conditions of recovery which are made such by the contract itself. The burden is then thrown upon the defendant to set forth and prove the collateral matters upon which he relies. There is also another distinction very important in its practical application. As this defense relates entirely to the substance and not to the letter of the contract, it can •only prevail by proof of some representation material to the risk, and that it was untrue in some material particu- lar. * * • The answers contained in the application being in the nature of representations only, the question is •of their substantial and not their literal truth. To defeat the policy they must be shown to be materially untrue, or ■untrue in some particular material to the risk." § 210. Immaterial whether False Bepresentation is lotentlonal or Accidental. — It is immaterial whether the misrepresentation was intentional or accidental. "It is not necessary, in aU cases," says the Court of Appeals of New York,' " in order to sustain a defense of misrepresenta- tion in applying for the policy to show that the misrepresen- tation was intentionally fraudulent. A misrepresentation is defined by Phillips to be whei-e a party to the contract 1 Campbell v. New England Mut. L. Ins. Co., 98 Mass. 390. 2 Armour v. Transatlantic F. Ins. Co., 90 N. Y. 455. 279 § 210 ■WARRANTY AND RKPRKSKNTATION. of insurance, either purposely, or through negligence, mistake or inadvertence, or oversight, misrepresents a fact which he is bound to represent truly ^ and he lays dowa ' the doctrine that it is an implied condition of the contract of insurance that it is free from misrepresentation or con- cealment, whether fraudulent or through mistake. If th& misrepresentation induces the insurer to enter into a con- tract which he would otherwise have declined, or to take a. less premium than he would have demanded had he known the representation to, be untrue, the effect as to him is the- same if it was made through mistake or inadvertence, as if it had been made with a fraudulent intent, and it avoids th& contract. An immaterial misrepresentation, unless in reply to a specific inquiry, or made with a fraudulent intent and! influencing the other party, will not impair the contract. But if the risk is greater than it would have been if the representation had been true, ihe preponderance of author- ity is to the effect that it avoids the policy, even though the misrepresentation was honestly made.^ A material mis- representation by the agent for effecting the insurance will defeat it, though not known to the assured, and though made without any fraudulent intent on the part of th& agent, to the same extent as though made by the assured himself.^ In this case ( which was a case of fire insurance)' Story, J. , says : ' A false representation of a mateiial fact is, according to well settled principles, sufficient to avoid a policy of insurance underwritten on the faith thereof,, whether the false representation be by mistake or design.' " The assured, having given an untrue answer, whether by accident, mistake or design, it matters not, to a direct, plain and practical question, he cannot afterwards be heard to- say it was immaterial.* 1 Fhlll. on Ins., § 537. 2 Phill. on Ins., §§ 537-642; Wall v. Howard Ins. Co., 14 Barb. 383. ' Carpenter v. Am. Ins. Co., 1 Story C. C. 57. • Davenport v. New England Ins. Co., 6 Cush. 340; Day v. Mutual Ben. 28U WARRANTY AND EF.PIil SKNTATION. § 211 § 211. Materiality of Representation Question of Fact. — Where any doubt exists as to the materiality of the misrepresentation, it is a question of fact for the jury.^ The Supreme Court of Massachusetts says upon this sub- ject:^ "It is true that a representation need not, like a. warranty, be strictly and literally complied with, but only substantially and in those particulars which are material to be disclosed to the insurers to enable them to determine whether they will enter into the contract ; and that, where the question of materiality of such particulars depends- upon circumstances, and not upon the construction of any writing, it is a question of fact to be determined by the jury. But where the representations upon which the con- tract of insurance is based are in writing, their interpreta- tion, like that of other written instruments, belongs to the court; and the parties may, Oy the frame and contents of the papers, either by putting representations as to the quality, history or relations of the subject insui'ed into^ the form of answers to specific questions, or by the mode of referring to them in the policy, settle for themselves that they shall be deemed material ; and, when they have done so, the applicant for insurance cannot afterwards be permitted to show that a fact which the parties have thus declared material to be truly stated to the insurers, was in L. Ins. Co., 1 McArthur, 41; 29 Am. Rep. 671; Anderson v. Mtzgerald, 4 H. of L. Cas., 484; 2 Big. 341; McCoy v. Metropolitan Life Ins. Co , 133- Mass. 82; ^tna L. Ins. Co. v. France, 91 TJ. S. 510; Foot v. ^tna L. Ins Co., 61 N. Y. 571; Baker v. Home Life Ins. Co., 64 If. Y. 648; Cush- man v. United States Life Ins. Co., 63 N. Y. 404 ; Galbralth v. Arlington,, etc., Ins Co., 12 Bush, 29 ; Powers ». N. E. Mutual Life Assn., 50 Vt. 680 ; Metropolitan L. Ins. Co. a. McTague, 49 N. J. L. 587; 9 Atl. Rep. 766; 8- Cent. Rep. 611 ; Cazenove v. British Equitable Ins. Co., 29 L. J. C. P. 160; 6 Jut. (n. s.) 826; 8 W. R. 243. 1 Armour v. Transatlantic F. Ins. Co., 90 N. Y. 450; Mut. Benefit L. Ins. Co. V. Miller, 39 Ind. 475; Campbell v. New England M. L. Ins. Co.,. 98 Mass. 395; "Washington Mut. L. Ins. Co. v. Haney, 10 Kan. 525. 2 CampbeU v. N. E. Life Ins. Co,. 98 Mass. 402. 281 § 212 WAERANTY AND KEPKESENTATION. fact immaterial, and thereby escape from the consequences of making a false answer to such a question." '■ § 212. Answers to Specific Questions always Mate- Tial. — Where a specific question is asked and the applicant makes an untruthful answer, the policy is avoided whether the answers are warranties or representations, because" the parties may by their contract make material a fact that would otherwise be immaterial, or make immaterial a fact that would otherwise be material."^ On this point the Supreme Court of Iowa has said: ^ "A misrepresentation by one party of a fact specifically inquired about by the other, though not material, will have the same effect in ex- onerating the latter from the contract as if the fact, had been material, since, by making such inquiry, he implies that he considers it so. In all jurisprudence this distinc- tion is recognized. It is particularly applicable to written inquiries referred to in a policy. The rule is so because a party, in making a contract, has a right to the advantage of liis own judgment of what is material, and if by making specific inquiry, he implies that he considers a fact to be so, the other party is bound by it as such.* Representations of this kind differ from warranties in that a substantial <;ompliance with them is sufficient to answer their terms. Whether there has been sucli substantial compliance, that is whether the representation is, in every material respect, true, is a question of fact for the jury. But it is not for the jury to say that the representation, though substantially untrue, is, notwithstanding, immaterial. An illustration will make plain the view of the court. Suppose that, in answer 1 Anderson v. Fitzgerald, i H. L. Cas. 484; 17 Jur. 995; Von Linde- nan v. Desborough, 3 M. & Rob. 45; 8 B. & C. 586; 3 C. & P. 350. 2 Phoenix Mut. L. Ins. Co. v. Raddin, 120 U. S. 183. s Miller v. Mutual Benefit L. Ins. Co., 31 la. 232; 7 Am. Rep. 122. * 1 Phil, on Ins., § 342 ; Campbell v. New England Mut. L. Ins. Co., •58 Mass. 40L. 282 WAKRANTY AND KEPKESENTATION. § 213 ■to a specific question, the assured states that his age is a week or a month greater. The question would be a proper •one for the jury to say whether the representation, though strictly and technically untrue, was not substantially and materially true. But suppose it appears, from the evidence, that the age of the assured is fifty, instead of thirty, years. It is not the province of the jury to say that the represen- tation, though untrue, is immaterial." It is not within the province of the jury, under the guise of determining whether the statements of the applicant were substantially true or false to find that diseases and infirmities were not material to be disclosed when the parties had, by the form of the xjontract of insurance and of the contemporaneous written application conclusively agreed to consider them material. That is, it is for the court to rule whether or not a matter is material, and for the jury to determine whether the statements concerning such matters, ruled material, were substantially true.^ And yet, as we shall see, it has often been left to the jury to say whether certain statements in the application were material to the risk. § 213. Representations to be Material Need not Always T>e of Facts Relating Directly to the Risk. — In order to be material a representation need not necessarily be of facts relating directly to the risk. If the applicant makes false statements as to some incidental matters, as for example •concerning his pecuniary means, or his social or business relations, from which' an inference can be drawn as to the propriety of accepting or declining the risk, they will avoid the policy, provided the jury, for it is a question of fact to 1 Campbell v. New England L. Ins. Co., 98 Mass. 401 ; Davenport e. "New England Ins. Co., 6 Gush. 341 ; Miller v. Mutual Ben. L. Ins. Co., 31 la. 233; PhcEilix M. L. Ins. Co. «. Raddln, 120 tJ. S. 183; Day v. Mutual Ben. L. Ins. Co., 1 McArthur, 41; 29 Am. Rep. 565; Anderson v. Fitz- gerald, 4 H. L. Caa. 484; JefEries v. Life Ins. Co., 22 WaU. 47; Co-op- cruiive, etc., Assn. v. Leflore, 53 Miss. 1. 283 § 213 WAKKAKTY AND KEPKESKNTATION. be left to a jury, find that the insurer was influenced by them, or, in other words, that they were material elements in the making of the contract. This doctrine has been laid down by the text-books,^ and also in an old English case,* and it has been approved by the Court of Appeals of New York.' In that case the insured, Schumacher, was, it was claimied, represented to be a partner in the firm of Valton,. Martin & Co., and the moneyed man of the concern, when, in fact, he was only the porter who worked in the store, and! the false representation was made by Martin, who was with the insured and took an active part in effecting the insurance and was one of the payees of the policy. In this case the^ court said: "The judge, among other things, charged thfr jury that if the insured untruly represented that he was a^ partner of the firm of Valton, Martin & Co., or. that if h& untruly represented that he was the moneyed man of the firm, and either or both of such untrue representations were material to the risk, then the policy was avoided, and there could be no recovery. That if Schumacher was dead in September, 1850, and his occupation that of a merchant at the time the proposals were signed, and the representation* of his being a partner, or the moneyed man of the firm, were either not untrue or not material to the risk, then the action was prima facie sustained. The defendant's counsel requested the court to charge the jury that if Schumacher himself, or by Martin in his behalf, represented to the agent of the defendants that Schumacher was a partner of the firm of Martin, Valton & Co., when in fact at that time he was not such a partner, and if the defendants would not have- issued the policy if the representation had not been made^ then the policy was void and the plaintiffs could not recover. The judge declined so to charge, and the defendant's coun- 1 Araould on Ins., p. 520; 2 Duer, 632 ; 3 Kent Comm. 282, » Sibbald «. HIU, 2 Dow's Pari. E. 263. » "Valton V. National, etc., Soc, 20 N. Y. 32. 284 WARRANTY AND REPRESENTATION. § 213 «el excepted. The defendant's counsel also requested the judge to charge the jury that if they found that Schumacher himself, or by Martin in his behalf, represented to the agent ■of the defendants that Schumacher was the moneyed man of the concern of Valton, Martin & Co., when in fact at that time he was not such, and that the defendants would not have issued the policy if the representations had not been made, then the policy is void and the plaintiffs cannot recover. The judge refused so to charge, and the defend- ant's counsel excepted. The charge of the judge was cor- rect as far as given. If the representations were made, and false, the falsity must have been known to Schumacher and Martin. The facts wau-e within their knowledse, and the representations fraudulent. The requests to charge, <;onsidered«in connection with the charge given, present the question whether fraudulent representations made by the assured to the insurer upon his application for a policy, though not material to the risk, yet material in the judgment of the insurer, and which induced him to take the risk, will avoid the policy. This question has not been determined by any adjudged case in this State, so far as I have been able to discover. The elementary writers hold that the policy may be avoided. In Sibbald v. HilP it was held that when the assured fraudulently represented to the un- derwriter that a prior insurance by another underwriter upon the same risk had been made at a less premium than it was in fact made, the policy was vitiated. In this case it is obvious that the risk itself was not affected by the representations. Lord Eldon, in his opinion, says that it appeared to him settled law, that if a person meaning to «ffect an insurance exhibited a policy underwritten by a person of skiU and judgment, knowing that this would weigh with the other party and disarm the ordinary pru- dence exercised in the common transactions of life, and it • 2 Dow's Pari. E. 263. 285 § 214 WAERANTY AND REPRKSENTATION. turned out that this person had not in fact underwritten Hut- policy, or had done so under such terms that he came under no obligation to pay, it appeared to him settled law that this would vitiate the policy. The courts in this coun- try would say that this was a fraud ; not on the ground that the misrepresentation affected the nature of the risk, but because it induced a confidence without which the party would not have acted. The principle of this case, when applied to the one under consideration, shows that the judge committed an error in refusing to charge as re- quested. It is clear that the circumstance of a party being engaged in commercial business, possessed of large means, might induce an insurer to make an insurance upon his life for a large amount, while were he a mere porter, the risk would be rejected, although the chance of life .would be as- good in the latter situation as in the former." ^ So, where the residence of the applicant was stated at Fisherton Anger and it appeared that she had been in jail there, it was left to the jury to say whether the fact was material and ought to have been communicated.^ § 214. Representations Keed only be Substantially True : Good Faitb of Applicant. — It i;* enough, however, if representations be substantially true ; in this respect being unlike warranties, which are always material, and which must be literally true. The authorities are not, however, perfectly clear on this point, for in some cases, it has been held that the element of good faith enters so far into the construction of statements warranted to be true that it is enough if they are substantially true. An inter- esting case was decided by the Supreme Court of Minne- sota,^ where the insured had stated that he had not had 1 nigbie V. Guardian Mut. L. Ins. Co., 53 If. Y. 603. 2 Huguenin v. Rayley, 6 Taunt. 186; KaTvllns v. Desborough, 2 M. &, Bob. 328. ' Price V. Phoenix Mut. L. Ins. Co., 17 Minn. 518; 10 Am. Rep. 1B6. 2»6 WARRANTY AND REPRESENTATION. § 214 rheumatism, when he, in fact, had had sub-acute rheuma- tism, which is not oi-dinarily considered a disease. In this case the court said: "The rheumatism referred to in the question is the disease of rheumatism. Any rheumatic affection not amounting to the disease of rheumatism, is not comprehended in its terms, any more than the spitting of blood occasioned by a wound of the tongue, or the extract- ing of a tooth, is the disease of ' spitting of blood ' men- tioned in the same question. The life insured had the right to answer the question upon the basis that its terms were used in their ordinary signification. If there was any ambiguity in the question, so that its language was capable of being construed in an ordinary, as well as in a technical sense, the defendant can take no advantage from such am- biguity.' ' 1 So, the Supreme Court of the United States has said: "■' " It is contended that if the answers of the assured are to be deemed representations only, the policy was, nevertheless, forfeited, if those representations were untrue in respect of any matters material to the risk. The argu- ment is, that if the insured was, at the time of his applica- tion, or had been at any former period of his life, seriously or in an appreciable sense, afflicted with scrofula, asthma, or consumption, his answer, without qualification, that he had never been so afflicted, being untrue, avoided the policy, without reference to any knowledge or belief he had upon the subject. The soundness of this proposition could not be disputed if, as assumed, the knowledge or good faith of the insured, as to the existence of such diseases, was, under the terms of the contract in suit, of no consequence whatever in determining the liability of the company. But is that assumption authorized by a proper interpretation of the two instruments constituting the con- tract? We think not. Looking into the application, upon 1 WUson V. Hampden F. Ins. Co., i E. I. 159. * Moulor V. American Life Ins. Co., Ill U. S. 335. 287 ■§ 214 WARRANXr AND KEPRESENTATION. the faith of which the "policy was issued and accepted we find much justifying the conclusion that the company did not require the insured to do more, when applying for insurance, than observe the utmost good faith, and deal fairly and honestly with it, in respect of all material facts about which inquiry is made, and as tn which he has or should be presumed to have knowledge or information. The applicant was required to answer yes or no as to whether he had been afflicted with certain diseases. In respect of some of those diseases, particularly consumption, and diseases of the lungs, heart, and other internal organs, common experience informs us that an individual may have them in active form, without at the time being conscious of the fact, and beyond the power of any one, Jiowever learned or skillful, to discover. Did the company expect, when requiring categorical answers as to the exist- ence of diseases of that character, that the ai)|jlicant should answer with absolute certainty about matters of which cer- tainty could not possibly be predicated? Did it intend to put upon him the responsibility of knowing that which, perhaps, no one, however thoroughly trained in the study ■of human diseases, could possibly ascertain? We shall be aided in the solution of these inquiries by an examina- tion of other questions propounded to the applicant. In "that way we may ascertain what was in the minds of the parties. Beyond doubt, the phrase, ' other known cause,' in the fourteenth question, serves the double purpose of in- terpreting and. qualifying all that precedes it in the same clause or sentence. For instance, the applicant was not re- quired to state all the circumstances, within his recollection, •of his family history, but those only which rendered the proposed insuiance more than usually hazardous, and of which he had personal knowledge, or of which he had in- formation fairly justifying a belief of their existence. If he omitted to state circumstances in his ' family history ' of 288 WARRA^■TT AXD REPRESENTATION. § 214 'which he had no knowledge, nor any information deserving jittention, that omission would not avoid the policy, al- though it subsequently appeared that those circumstances, if known to the company, would have shown that the pro- posed insurance was more than nstially hazardous. Apart from other questions or clauses in the application, the tenth •question would indicate that an incorrect or untrue answer .as to whether the applicant's ' father, mother, brothers or sisters had been affected with consumption, or any other serious family disease, 8uch as scrofula, insanity,' etc., would absolve the company from all liability. Yet in the foui'teenth question, the insured, being asked as to his family history and as to ' hereditary predispositions ' — an inquiry substantially covering some of the specific matters referred to in the tenth question — was, as we have seen, ■only required to state such circumstances as were known to him, or of which he had information, and which rendered An insurance upon his life more than usually hazardous. So, in reference to that part of the fourteenth question re- lating to the then physical condition of the applicant. Suppose, at the time of his application, he had a disease of the lungs or heart, but was entirely unaware that he was so 4iffected. In such a case he would have met all the require- ments of that particular question, and acted in the utmost good faith, by answering no, thereby implying that he was aware of no circumstance in his then physical condition which rendered an insurance upon his life more than usually hiizardous. And yet, according to the contention of the • ■company, if he had, at any former period of his life, been afliicted with a disease of the heart or lungs, his positive answer to the seventh question, that he had not been so afflicted, was fatal to the contract; this, although the ap- plicant had no knowledge or information of the existence At any time of such a disease in his system. So, also, in lef erence to the inquiry in the fourteenth question as to any 19 289 § 214 WAKRAXXr AND RKPKESKNTA HON. ' constitutional infirmity ' of the insured. If, in answering^ that question, he was required to disclose only such consti- tutional infirmities is' were then known to him, or which he- had reason to believe then existed, it would be un- reasonable to infer that he was expected, in answer to a prior question in the same policy, to guarantee absolutely, and as a condition precedent to any binding contract, that he had never, at any time, been afflicted with diseases of which, perhaps, he never had, and could not have any knowledge whatever. The entire argument in behalf of the company proceeds upon a too literal interpretation of those clauses in the policy and application which declare the contract null and void if the answers of the insured to- the questions propounded to him, were, in any respect, untrue. What was meant by ' true ' and ' untrue ' answers ? In one sense, that only is true which is conformable to the actual state of things. In that sense a statement is untrue which does not express things exactly as they are. But in , another and broader sense, the word ' true ' is often used as a synonym of honest, sipcere, not fraudulent. Looking at all the clauses of the application, in connection with the policy, it is reasonably clear — certainly the contrary can- not be confidently asserted — that what the company re- quired of the applicant as a condition precedent to any binding contract, was, that he would observe the utmost good faith towards it, and make full, direct and honest answers to all questions, without evasion or fraud, and without sup- pression, misrepresentation or concealment of facts with which the company ought to be made acquainted ; and that by so doing, and only by so doing, would he be deemed t» have made ' fair and true answers.' If it be said that an individual could not be afflicted with the diseases specified in the application, without being cognizant of the fact, the answer is that the jury would, in that case, have no serious difficulty in finding that be had failed to communicate to- 290 AVARRANTT AND REPRESEXTATION. § 214 the compam' what he knew or should have known was material to the risk, and that, consequently, for the want of ' fair and true answers,' the policy was, by its terms, cull and void. But, whether a disease is of such a charac- ter that its existence must have been known to the individ- ual afflicted with it, and, therefore, whether an answer denying its existence was or not a fair and true answer, is a matter which should have been submitted to the jury." i The general disposition of the courts in matters of con- struction of applications is thus stated by the Kentucky Court of Appeals.^ "Forfeitures are regarded by courts with but little favor, and while the non-payment of pre- miums or a representation of facts fraudulently or innocently made, if untrue and material to the risk, or such as would induce the insurer to enter into the contract, must prove fatal to the policy, when minute and trivial questions are propounded and answered, having no bearing or influence on the minds of those about entering into the contract, and not material to the risk, the parties cannot be affected by them. An honest belief in the truth of the statement made, when not material to the risk, should not avoid a policy if the statement should prove to be untrue, and to adjudge that it works a forfeiture is contrary to the intent and meaning of the parties, and subversive of that rule of good faith and fair dealing, that should enter into and form a part of every insurance contract." As further illustra- tive of the principle that the representations of the ap- plicant in his answers to questions in the application need be only substantially true, we may cite an opinion of the ' Alabama Gold Life Ins. Co. v. Johnson 80 Ala. 467 ; 2 South. Eep. 130 ; Miller v. Mutual Ben. Life Ins. Co., 31 la. 229 ; Langdon v. Union M L.. Ins. Co., 14 Fed. Kep. 272 ; Campbell v. New England Mut. Life Ins. Co., 9S Mass. 405; Phoenix Mut. Life Ins. Co. v. Raddin, 120 U. S. 183; Fowkes V. Manch. & Lond., etc., Ins. Co., 3B. & S. 917; 32 L. J. Q. B. 153; 11 W. R. 622; 8 L. T. (s. s.) 309. ' Germania Ins. Co. v. Rudwig, 80 Ky. 235. 291 ^ 214 WARRANTY AND REPRESENTATION. Supreme Court of the United States. In this case the de- fense was that the applicant had falsely answered the question, " Have you ever had any of the following dis- eases, • « * affection of liver? " by saying, " No." The court said: ^ " It seems to the court, however, that the company by its question sought to know whether the liver had been so affected that its ordinary operations were seriously disturbed, or its vital power materially weak- ened. It was not contemplated that the insured could recall, with such distinctness as to be able to answer cate- gorically, every instance during his past life, or even during his manhood, of accidental disorder or ailment affecting the liver, which lasted only for a brief period, and was unat- tended by substantial injury, or inconvenience, or pro- longed suffering. Unless he had an affection of the liver that amounted to disease, — that is, of a character so well- defined and marked as to materially derange for a time the functions of that organ, — the answer that he had never had the disease called affection of the liver was a ' fair and true ' one ; for such an answer involved neither fraud, mis- representation, evasion, nor concealment, and withheld no information as to his physical condition with which the company ought to have been made acquainted." This case was followed by the Federal court in Indiana, where the applicant had answered, " no," to the question whether he had ever had " spitting or raising of blood." The court held,^ that this answer was true although on one occasion the applicant had " spit blood," and that the only warranty implied by the terms of the question was not that he had never had spitting or raising of blood, but that he had never had the complaint of spitting or raising blood, or *' had blood-spitting in such form as to be called a disease, 1 Connecticut Mut. L. Ins. Co. v. Union Trust Co., 112 U. S. 250; 5 Sup. Ct. Kep. 119. * Dreier v. Continental Life Ins. Co., 24 Fed. Rep. 670. 292 WARRANTY AKD REPRESENTATION. § 216 disorder, or constitutional vice." The court continues : "If the question put to the applicant for the insurance had been whether or not he had had any spitting of blood, or had had any symptom of disease, such as spitting or raising of blood, it would doubtless have required the disclosure of a single instance of blood-spitting."^ § 215. Understanding of Applicant as to Effect of False Answers. — In many applications for insurance a question is included asking what the understanding of the applicant is as to the effect of untrue answers upon the contract, or oftener, if the applicant does not understand that the contractwill be avoided under certain conditions. Such state- ments in the application cannot control the legal construc- tion of the policy afterwards issued and accepted, although the application warrants the facts stated therein to be true, and the policy is expressed to be made in consideration of the warranties made in the application. " The statements expressing his understanding of what will be the effect of the insurance are statements not of fact, but of law, and cannot control the legal construction of the policy after- wards issued and accepted." ^ § 216. Answers to Questions in Applications for Mem- bership In Benefit Societies Grenerally not Warranties but Representations. — As a general thing the answers in a medical examination or an application for membership in a benefit society are not warranties but representations. In a case in the Federal court of New York, where the form of the agreement, however, was not given,'' the court says: " The question of law is whether, under Semm's applica- ^ On this point the opinion cites : Geach v. Ingall, 14 M. & W. 95 ; 2 Big. L. & A. Ins. R. 306; Insurance Co. v. Miller, 39 Ind. 475; Vose v. Eagle, etc., Ins. Co., 6 Cush. 42; Cushman v. Ins. Co., 70 N. Y. 72. ' Accident Insorance Co. v. Crandall, 120 TJ. S. 533. » Semm c. Supreme Lodge, etc., 29 Fed. Rep. 895. 293 § 216 WARRANTY AND REPRESENTATION. tion to Humboldt lodge for membership therein and the certificate which he received from said lodge, he warranted the truth of the answer which he gave to the question, * Have you been rejected by the medical examiner of any lodge or society? ' In my opinion, he was required, under the contract, to answer the question according to his knowl- edge or reasonable means of belief, and not to misrepre- sent or suppress known facts, but that he did not warrant the absolute truth of his answers." In a case in Indiana the Supreme Court held as follows: ^ " Statements made by the insured in his application for insurance are not deemed warranties unless they are incorporated in the policy, or, in some appropriate method, referred to in that Instrument. The statements by the insured in his applica- cation are not set forth in the policy, nor in any way is reference made to them, and they cannot be considered warranties." The question was more squarely presented in a case in Illinois,^ where the application concluded : " It is hereby declared, that the above are fair and true answers to the foregoing questions, in which there is no misrepre- sentation or suppression of known facts ; and I acknowledge and agree that the above statement shall form the basis of the agreement with the society." In an action on the policy the defense was that false answers had been made in the application which avoided the policy. The Supreme Court, in passing upon the matter, said: " The answers, of course, enter into the application, because, if for no other reason, assiwed expressly agreed they should be the basis of the agreement with the society ; but the effect that shall be given to the representations is the principal ques- tion in dispute between the parties. Appellant claims they were intended to be, and should be, held to constitute a warranty of their truth, and if any or either of them are 1 Presbyterian Mut. Ass. Fund v. Allen, 106 Ind. 693. * Illinois Masons, etc., v. Winthrop, 85 111. 537. 294 WAIJRANTY AKD KEl'RESENTATION. § 216 «hown to be untrue, whether their falsity was known, or whether intentionally or unintentionally the truth was con- <;ealed, or it was only from the want of memory, or by in- advertence, there can be no recovery. On the other hand, it is contended that the answers are not warranties but simply representations ; and that, if made in good faith, although some one or more of them may be untrue, if the misstatement was not intentionjal, but wa-i made in good faith and under the belief that the statements were true, the misstatement did not operate to avoid the policy. The clause stating that the assured agreed * that the statement shall form the basis of the agreement with the society,' is different from the agreements usu- ally contained in life policies. In such instruments it is usually agreed, that the statement is a warranty and that if any part of it should prove to be untrue, the policy should be void. With persons of ordinary intelligence, the language used in this application would not be so under- stood. Nor do we suppose that the promoters of this •enterprise, when they adopted this form, intended that it should operate as a warranty, such as is usually inserted in life policies. Nor can we suppose for a moment that they would adopt a form of words that would be understood one way by the applicant and would be construed another by the courts, and thus cheat, wrong or defraud a brother. Such a supposition cannot be for a moment entertained. If the language employed was intended to operate as the usual warranty, we apprehend it has not been so understood by those, oi" any portion of them, who had applied for member- ship before the death of Price. If intended as an absolute warranty that the statement and every part of it was true, why limit the previous part of the statement to ' no misrep- resentation or suppression of known facts ? ' This the com- pany required of each applicant, and when they made that requirement, they, by implication, absolved him from any 21^5 § 216 WAREANTr AND REPRESENTATION. injurious consequences from misrepresentation or failure to disclose unknown facts. If a warranty was required of the answers to some of these questions, it would be useless for persons to become members of the society. Each ap- plicant is required to answer the question, whether he is able^ to earn a livelihood for himself and family. Now, with the great majority of men, this is problematical. That- power depends upon so large a number of circumstances that a prudent man might well hesitate to answer it in the- affirmative. The solution of this question depends, with most men, so decidedly on such a variety of contingencies^ that almost any man, whatever his mental or physical en- dowments, would be regarded as extremely rash to warrant that he could. If able at the time, what guaranty that he- could do so for any definite period? Does this statement require that he should remain so during life or for a shorter period? And if so, for what period? It is manifest that all that can be required of the applicant is, that he should give to this question an answer based on an honest, fair and intelligent belief. The applicant is also asked if his- ancestors generally reached old age. Now, who are his ancestors, referred to in this interrogatory? How many generations back is it intended to extend? And, suppose the applicant, on slight or unreliable information, answers in the affirmative, do the directors suppose they can show the misinformation and defeat a recovery? If such a con- struction is to be given to this application, then members,, if not wronged, cheated, or defrauded, are, we have no- doubt, generally deceived unintentionally. Suppose, to the question whether the applicant is, at the time, in good health, the answer is in the affirmative, is every slight obstruction to the performance of their proper functions by the various organs of the system to be held as a breach of warranty, and to avoid the policy? Such, we presume was never intended to be the construction given to the answer, as 296 WARRANTY AND REPRESENTATION. § 217 all know that but a small percentage of the human family are entirely free from some infirmity, slight or serious. There is the question whether the applicant has ever had any serious illness or personal injury. Suppose the appli- cant answers in the negative, may the society show that the applicant, in his early infancy, and so far back that it is beyond memory's reach, had serious illness, and defeat a recovery, although he had never been informed of the fact? That would be a fact that would, in all probability, be wholly unknown to him, and neither party intended that a negative answer should be a warranty that it did not so occur, and a misrepresentation or suppression of such an unknown fact was intended to be included in the exception in the statement. It was only known facts that were not to be misrepresented or suppressed. • » • From what has been said, we are unable to hold that the statement was made or intended as a warranty of the abso- lute truth of the answers, but the statement was only designed to insure honesty and good faith in making them. Otherwise the statement would not have contained the lim- itation that they were true and fair answers, ' in which there is no misrepresentation or suppression of known, facts.' " ^ If the applicant is a foreigner, with an imper- fect knowledge of the language, this circumstance mast ie considered in determining the meaning of the words he has- used.* § 217. Concealment. — According to the law of insur- ance concealment is the designed and intentional withhold- 1 Morrison v. Odd-fellows, etc., Ins. Co., 59 Wis. 165; Clapp v. Mass. Ben. Assn. (Mass.), 16 N. East Kep. 433; 6 N. Eng. Rep. 103; Swett v. Belief Society, 78 Me. 541; Mnt. Benefit Ins. Co. v. Miller, 39 Ind. 475; Grossmann o. Supreme Lodge, etc., Sup. Ct. N. Y., not reported; North- -westem Benev., etc., Assn. e. Cain, 31 m. App. Ct. 471; Sup. Council Boyal Arcanum v. Lund, — HI. App. Ct. 1888. « Knickerbocker L. Ins. Co. v. Trefz, 104 U. S. 197. 297 •§ 218 WAKRANTY AND REPRESENTATION. ingof any fact, material to the risk, which the assured in honesty and good faith ought to communicate ; and any fact is material, the knowledge or ignorance of which would naturally influence an insurer in making the contract at all, or in estimating the degree and character of the risk, or in fixing the rate of insurance. All representations which «nter into the essence of the contract, and which go to lay the foundation of it, whatever would cause the company to accept or reject the application, should be truly stated.^ § 218. Concealment of Material fact will Avoid the «seg. ■' Fletcher v. New York L. Ins. Co., 14 Fed. Rep. 846. 302 WARRANTY AND REPRESENTATION. § 222 plication "No." The policy when issued had attached to it a copy of the application and a memorandum calling the attention of the insured to it and requesting that any errors in the application be reported to the company for correction. The assured died of diabetes and the false answer of the applicant was set up in defense to the action on the policy. The court instructed the jury that if the assured answered the questions correctly and the false answers were written in by the agent, without the knowl- edge of the assured, and'if the assured did not know of the misstatement until after the policy was issued, then such action of the agent was a fraud upon the assured, and the policy was not avoided. Upon the appeal of this case to the Supreme Court of the United States,^ it was re- versed, the court, after stating that the company had a right to limit the authority of its agents if knowledge of such limitations was brought home to those having dealings with such agents, continues thus: "The present case is very different from Insurance Co. v. Wilkehson,^ and from Insurance Co. v. Mahone.* In neither of these cases was any limitation upon the power of the agent brought to the notice of the assured. Reference was made to the inter- ested and officious zeal of insurance agents to procure con- tracts, and to the fact that parties who were induced to take out policies rarely knew anything concerning the com- pany -or its officers, but relied upon the agent who had per- suaded them to effect insurance ' as the full and complete representative of the company in all that is said or done in making the contract ; ' and the court held that the powers of the agent are prima facie co-extensive with the business entrusted to his care, and would not be narrowed by lim- itations not communicated to the person with whom he 1 New York Life Ins. Co. v. Fletcher, 117 U. S. 531. » 13 Wall. 222. » 21 Wall. 152. 303 § 222 WABEANTT AND REPRESENTATION. dealt. Where such agents, not limited in their authority, undertake to prepare applications and take down answers, they will be deemed as acting for the companies. In such cases it may well be held that the description of the risk, though nominally proceeding from the assured, should be regarded as the act of the company. Nothing in these views has any bearing upon the present case. Here the power ■of the agent was limited, and notice of such limitation given by being embodied in the application, which the assured was required to make and sign, and which, as we have stated, he must be presumed to have read. He is, therefore, bound by its statements, * * » xhe instruction given to the jury in the case before us, is, in effect, that the assured was bound by his applica- tion if it was not avoided foe, fraud, and that it was so avoided by reason of the false statements contained in it, and that, therefore, the plaintiff, as his representative, could recover. But if the application was avoided, it would seem to be a necessary consequence that the policy itself was also avoided, and his right limited to recovering the pre- miums paid. But such was not the conclusion of the court. It directed the jury that if the application was avoided for fraud, he could recover. It does not seem to have occurred to the court that had the answers been truthfully reported, and the fact of the assured having had diabetes within a recent period been thus disclosed, the insurance would in all probability have been refused. If the policy can stand with the application avoided, it must stand upon parol state- ments not communicated to the company. This, of course, cannot be seriously maintained in the face of its notice that ■only statements in writing forwarded to its officers would be considered. A curious result is the outcome of the in- struction. If the agents committed no fraud the plaintiff ■cannot recover, for the answers reported are not true ; but if they did commit the imputed fraud he may recover, al- 304 WARRANTY AND KEPKESENTATION. § 222 though upon the answers actually given, if truly reported, no policy would have issued. Such anomalous conclusions cannot be maintained. There is another view of this case •equally fatal to a recovery. Assuming that the answers of the assured were falsified, as alleged, the fact would be at •once disclosed by the copy of -the application, annexed to the policy, to which his attention was called. He would have discovered by inspection that a fraud had been perpe- trated, not only upon himself, but upon the company, and it would have been his duty to make the fact known to the company. ' He could not hold the policy without approv- ing the action of the agents and thus becoming a partici- pant in the fraud committed. The retention of the policy was an approval of the application and of its statements. The consequences of that approval cannot, after his death, be avoided." ^ In a case where the application was signed by the applicant and taken away by the agent and fiUed out incorrectly by him, it was held by the Supreme Court of Michigan ^ that the beneficiary in an action on the policy " had the right to show by her testimony that the answers made by her daughter at the house were incorrectly written in by the agent after he went to his office, or that he filled in answers at such office that were not made at the house by Victoria (the assured). As such answers, if made by the agent, and not by Victoria, or without her knowledge or consent, could not bind her, the fact that they were so made could be established by parol. If the application had not been signed until filled out, a different rule might prevail." * If the proposal for insurance be prepared by the 1 Ryano. World Mut. L. Co., 41 Conn. 168, 19 Am. Rep. 490; Lewis ■n. Phcenix Mut. Lite Ins. Co., 39 Conn. 100; Franklin F. Ins. Co. v. Mar- tin, 40 N. J.L. 668; American Ins. Co. v. Neiberger, 74 Mo. 167; Richard- son V. Maine Ins. Co., 46 Me. 394. » Brown v. Metropolitan L. Ins. Co., 32 N. W. Rep. 610; 8 West. Rep. 775. * Ante, § 152, et acq. 20 305 § 223 WARRANTY AND RKPRESENTATION., agent and he incorrectly report the answers of the appli- cant, and if there be no fraud or collusion between the agent and the insured, the contract may be reformed ia equity, and made to conform to the true facts stated to the agent.^ § 223. Answers to Keferee: To Medical Examiner c Position of Latter. — If the policy so refers to the answers of a mutual friend, or referee, or to the answers of the ap- plicant to the medical examiner as to warrant their truth and make them a part of the contract, they are warranties, other- wise they are representations which must be substantially true.' The medical examiner has a wide latitude in his ex- amination and the answers of the applicant must be sub- stantially true. The object of a physical examination of a person proposing to insure his life in an insurance company, by a competent physician, is to ascertain whether he is labor- ing under, or is subject to, any diseases or defects which may have a tendency to shorten life. "It is impossible," saya the New York Court of Appeals,' " to affix limits to the sub- jects, into which it is not only proper but necessary for an examining surgeon to inquire, in order to arrive at a conclu- sion upon which he can safely advise the acceptance or rejection of a risk. Whether I am right or wrong in these views, I entertain no doubt that in many cases a knowledge of the pecuniary circumstances of a person desiring to be in- sured is material to the risk, as affecting in some degree the 1 FranMin P. Ins. Co v. Martin, 40 N. J. L. 568; Collett v. Morrison,. 9 Hare,' 162; In re Universal Non-TarifE F. Ins. Co., L. K. 19 Eq. 385; Mal- leable Iron Works v. Phcenix Ins. Co., 25 Conn. 465; Woodbury Savings Bank v. Charter Oak Ins. Co., 31 Conn. 517; Maher r. Hibernia Ins. Co., 67 N. Y. 283. The effect of fault or fraud of agent will be further con- sidered when we come to speak of estoppel. See post, § 426 et seq. Also ante, § 152, et seq. 2 Miller v. Mutual Benefit Life Ins. Co., 31 la. 235; United Brethren, etc., Soc. a. Kintner, 12 W. N. C. (Pa.) 76. 8 Valton V. Loan Fund, etc., Soc, 1 Keyes, 21. 306 WAKRANTY AND KEPKESENTATION. § 223 life ; and they are a legitimate subject of inquiry for the examining physician or surgeon." Where the medical examiner writes down false answers, when true information is given, there can be no misrepresentation. In a case in New York the facts were that the medical examiner was re- quired by his instructions from the company to write the answers to the questions in his own handwriting and not to allow any person to dictate any portion of them. In an- swer to a question calling for the family history of the ap- plicant he stated correctly the cause of the death of a sis- ter. At the time the insured signed his name to the certificate, the answer had not been written in by the ex- aminer ; he subsequently filled in the cause of death is " not known to applicant. ' ' Under the facts the court held : ^ " He (the examiner) was the agent of the defendant for the purpose of reporting the answers to the questions referred to and was so held out to Terence Grattan. He was, as medical examiner, charged with certain duties by the de- fendant, and was acting in concert with the soliciting agent of the company. On the part of the life insured was en- tire good faith and truthfulness, and there is no reason to suspect any intentional unfairness on the part of the exam- iner. The omission was inadvertent. Is the company thereby released from its obligation ? Many decisions in this court show that it is not.^ Within the principle therein recognized as well established, the erroneous answer must be taken as the declaration of the defendant, and any controversy depending upon it must, as between the par- ties, be taken as true. In ihis case, the physician was not, the agent to solicit insurance, but he had an act to performi in regard to it, as the agent of the company. His written instructions were to write out the answers. In this in- » Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 293; 36 Am. Repi. 617. ' Mowry o. Kosendale, 74 N. Y. SCO and cases cited. 307 § 223 WARRANTY AND REPRESENTATION. stance he failed to do it correctly. The principle upon which it has been held that the company and not the insured, is responsible for the error of the soliciting agent, is equally applicable here. This question has been repeatedly con- sidered by this court and in the recent case of Flynn v. The Equitable Life Ins. Co.,^ was again before us. The point presented was similar to the one under review. The decision was in conformity with the views above expressed, and the doctrine referred to must be deemed .settled. I^or was it incompetent to prove by parol the actual trans- action between the insured and the medical examiner. It was proper to do this in reply to the defendant's case, without reforming the contract or asking for equitable re- lief. Fraud and breach of warranty in regard to his sister's death, is averred in the answer, and the matter given in evi- dence was proper in reply thereto. If sufficient as the foun- dation for equitable relief or ground for reforming the con- tract, it was not improper to receive in this action evidence which would defeat the defendant's claim, or which would be competent in any action in a court of equity. This ad- vantage is secured to the litigant by the union of legal and equitable remedies in one system." ^ This opinion was ad- hered to in a subsequent case in the same court, and reason supports the view that the medical examiner is the agent of the company upon whom the burden rests if he incorrectly reports the answers of the applicant.^ So, also where a printed application to a life insurance company was referred to in the policy and made a part thereof. The application was headed " Questions to be asked by the medical exam- •> 78 N. T. 568; 34 Am. Rep. 561. » Emery v. Pease, 20 MT. T. 62 ; N. T. Ice Co. ■!;. N. W. Ins. Co., 23 N. Y 357; Arthur r. Homestead F. Ins. Co., 78 N.T. 462. s Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 285; Co-operative Life Assoc. V. Leflore, 53 Miss. 20; United Breth., etc., Soc v. Kintner, 12 W. N. C. (Pa.) 76; Mutual Benefit L. Ins. Co. v. Wise, 34 Md. 582; Higbie V. Guardian Mut. L. Ins. Co., 53 N. Y. 603 ' 308 WARRANTY AND REPRESENTATION. § 223 iner, who will fully explain the questions and witness the answers and signature of the person examined." At the time of an examination the medical examiner made certain verbal explanations of the meaning of these printed ques- tions. The court held ^ that the applicant for insurance might properly infer, from what was stated in the caption to the questions, that in answering them he should do so with reference to the construction and explanation given at the time, and if the questions were explained and un- swered in good faith, according to the interpretation put upon them at the time by the representative of the com- pany, there could be no objection to proving the facts arid submitting them to the jury, notwithstanding the insured warranted the truth of his answers to the questions. The court approved the instruction to the jury of the judge be- low that "if in good faith the insured answered these questions in view of the interpretation that was presented to him by the agent, then, gentlemen, there is no fraud; and if such you find to be the case, you must read in these interrogatories the explanation made by the agent at the time, and then read his answers to the interrogatories in the light of such explanations." Rejection by the medical examiner of a company renders false the answer of the ap- plicant that he has not been rejected by any other com- pany.* But a negative answer to the question whether application has been made to any other company for insur- ance, is true although an application had in fact been made to another company which had not been passed on.^ Where the medical examiner or agent upon a statement of the facts, suggests the answer, the company afterwards will not be heard to say that it is untrue.* * Connecticut General L. Ins. Co. v. McMnrdy, 89 Pa. St. 363. » Edington x>. Mta& L. Ins. Co., 100 N. Y. 536. * Langdon r. Union Mnt. L. Ins. Co., 14 Fed. Rep. 272. * Higgins V. Fhcenlz, etc., Ins. Co., 74 N. Y. 6. 309 § 225 WARRANTY AND EEPKESENTATION. § 224. Rules of Constrijction in Particular Gases. — • A clearer idea of the natare of warranties and representa- tions and of the rules of construction of answers of the applicant in his application will be gained from an exami- nation of particular cases where a direct ruling of the court has been had upon specific matters contained in the appli- cation. We shall proceed therefore to refer to some of these cases relating to such matters as age, condition, occupation, habits, health and residence of applicant, seri- ous injury, sickness and questions relating to intejnperance. .§ 225. Age. — Where it is provided that if any of the statements made by the app^licarit as the basis of the con- tract shall be found in any respect untrue, then the policy shall be void, a misrepresentation as to age will avoid the the policy. The question of age is so material that a false statement in regard to it will be fatal whether regarded as a representation or a warranty.^ Where an applicant for admission to a voluntary association for mutual relief, the rules of which did not admit members over sixty years of age, stated his age, in his application to be fifty-nine years, when in fact he was sixty-four years of age, it was held by the Supreme Court of Maine ^ that the misrepresentation avoided the contract of insurance issued thereon. In this case the court says: " The age of the applicant was a ma- terial fact. If more than sixty he could not become a member. His representation of the fact was a warranty of its truth, and if not true, the contract was invalid. This rule is so uniformly held by the courts that no authorities 1 Hunt V. Supreme Council Chosen Friends (Mich.), 7 W«8t. Sep. 876; 31 N. W. Rep. 576? United Brethren, etc., Soc. v. White, 100 Pa. St. 12; ^tna Life Ins. Co. v. France, 91 U. S. 510; Alabama Gold Life Ins. Co. V. Mobile Mut. Ins. Co., 81 Ala. 329 ; 1 South. Rep. 561 : Hartigan v. Inter- national, etc., Soc, 8 Low. Can. Jur. 203; Linz v. Mass. Mat. L. Ins. Co., 8 Mo. App. 363; May on Ins., § 305. * Swett V. Citizens'- Mut. Kel. Soc, 78 .Me. Sil; 1 Atl. Rep. 391; 3N. Bug. Rep. 283 310 WAEKANTT AND EEPKESENTATION. § 22& need be cited." But where the agent of a life insurance oompany filled in the answers in the application, and the Applitant, an old man who spoke English imperfectly, stated to the agent that he did not know his age, and the iigent wrote in a certain age, which turned out to be incor- i-ect, and upon the trial of an action upon the policy issued npon such application, the agent testified that on the appli- cant's failure to state his age, he expostulated with him and then obtained some data from him which he (the agent) did not then recollect, aftid from them he computed the age, And inserted it in the application, the Court of Appeals of Kew York held that an estoppel en pais was fairly estab- lished and the company was precluded from setting up the falsity of the statement with reference to age in avoidance of the policy.^ § 226. "Whether Applicant is Married or Single. — If the question is asked whether the applicant is married or single the answer must be true, for by asking the question the insurer has shown that an answer was considered ma- terial. The question arose in Jeffries v. Life Insurance Company, in the Supreme Court of the United States,' where it was argued that it was immaterial because, in this ■case, the insured having answered that he was single, when in fact he was married, and being married made the risk better, the company was not injured. The court says: ■" This stipulation is not expressed to be made as to impor- tant or material statements only, or to those supposed to be material, but as to all statements. The statements need not come up to the degree of warranties. They need not be representations even, if this term conveys an idea of an affirmation having any technical character. Statements 1 Miller v. Phcenix Mut. Life lus, Co., 107 N. Y. 292; 10 Cent. Bep. 38; 14 N. East. Rep. 271. 2 22 WaU. 47. 311 f 227 WARRANTY AND REPRESENTATION. and declarations is the expression ; what the applicant states- and what the applicant declares. Nothing can be more simple* If he miikes any statement in the application it must be true, if he makes any declaration in the applica- tion it must be true. A faithful performance of this agree- ment is made an express condition to the existence of a. liability on the part of the company. There is no place for the argument either that the false statement was not material to the risk, or that it was a positive advantage to the company to be deceived by it. It is the distinct agree- ment of the parties, that the company shall not be deceived to its injury or to its benefit. The right of an individual or corporation to make an unwise bargain is as complete- as that to make a wise bargain. The right to make con- tracts carries with it the right to determine what is prudent and wise, what is unwise and imprudent, and upon that point the judgment of the individual is subject to that of no other tribunal. The case in hand affords a good illus- tration of this principle. The company deems it wise and prudent that the applicant should inform them truly whether he has made any other application to have his life insured.. So material does it deem this information, that it stipulate* that its liability shall depend upon the truth of the answer. The same is true of its inquiry whether the party is married or single. The company fixes this estimate of its importance. The applicant agrees that it is thus important by accepting this test. It would be a violation of the legal rights of th& company to take from it its acknowledged power, thus to make its opinion the standard of what is material audto' leave that point to the determination of a jury." ^ § 227. Residence. — When the residence of the appli- cant is asked the meaning is that the ordinary place of abode of the person should be given. " The term resi- 1 United Brethren Mnt. Aid Soc. ». White, 100 Pa. St. 12. 312 WARRANTY AND REPRESENTATION. § 228 dence" says the Supreme Court of Alabama,^ " as era- ployed in the questions propounded to the assured, was in- tended to signify the place of permanent, rather than mere temporary abode, in the sense of domicile, rather than of mere inhabitancy. It is undisputed that the domicile of the assured was truly stated, and that his sojourn in Ken- tucky was merely temporary. The domicile, and the place of temporary residence, are each within the territorial limits, in which according to the stipulation of the policy, the assured had the rigRt to visit or reside. The policy and the application must be construed together. Eesidence, as employed in the one, must have the same signification it bears in the other, there being no indication of an intention tc^ employ them in a differing signification. The word visit is manifestly employed in contradistinction to the word reside. The one conferring the right to travel and sojourn, and the other the right to acquire domicile by residence with thfr inteij^tion of remaining." ^ § 228. Occnpation. — The occupation of the applicant,, which is required to be disclosed, means the business in; which he is engaged at the time of making the application. "If it meant the trade he had learned in his youth and which he had followed years before, it would indeed be- immaterial whether he told the truth or a falsehood, and it would have been mere folly in the insurers to ask him the- qnestion." ^ So, where the applicant stated that he wal a "laborer," and it appeared that, as a matter of fact, he had suspended labor for several years prior to making the application, either on account of old age, or other continu- ous disability, it was held by the Supreme Court of Penn- 1 Mobile life Ins. Co. v. Walker, 58 Ala. 290. ' Southern Life Ins. Co. v. Booker, 9 Heisk. 606 ; 24 Am. Rep. 344 ; Perrins v. Marine, etc., Ins. Soc, 2 El. & El. 317; 29 L. J. Q. B. 242; 6- Jur. (N. s.) 627; 8 W. E. 663. » Hartman v. Keystone Ins. Co., 21 Pa. St. 478. 313 ^ 228 warraxt:y and representation. sylvania/ that the answer was misleading and the policy thereby avoided. "It is indeed true," says the court, *' that the rule would not embrace a merely temporary sus- pension of the alleged occupation, but it does embrace a suspension extending through several years, or resulting :from old age or other continuous disability." The New York Court of Appeals* has held where, in the appUcatioa for the policy, in answer to the question as to the occupa- tion of the deceased, the answer was "soda-water maker," and the medical examiner's certificate, required to be signed by the applicant, stated in answer to an inquiry as to the occupation of the applicant that " he is out of doors most of the time selling soda-water," and it appeared that the deceased both made and sold soda-water, that the answers were to be taken together and stated the facts correctly. And, where the applicant stated his occupation to be *' manufacturing," and it was shown that during the month the application was made insured kept a billiard saloon, and that for years previous he had been engaged in manufac- turing soda-water, and was about to resume this business, the court held * that the question might have been under- stood as calling for the usual rather than the temporary •occupation, and there was no breach of warranty. In England it was held that a representation that the applicant was an " esquire" was sufficient, if true, although he was at the time engaged in business as an ironmonger. This wsfe on the ground that the statement was not untrue, but imperfect.* If the statement of present occupation is true a subsequent change will not avoid the policy, unless it is ao stipulated in the contract.'' 1 Mutual Aid Society v. White, 100 Pa. St. 12. s Grattan c. Metropolitan Life Ins. Co., 80 N. T. 281; 36 Am. Sep. 617. » Mowry v. World Mutual Life Ins. Co., 7 Daly, 321., * Perrins v. Marine & Gen. Tr. Ins. Co., 2 El. & El. 317; 29 L. J. Q. B. 242 ; 6 Jur. (k. 8.) 627 ; 8 W. R. 563. See also Southern Life Ins. Co. e. Booker, 9 Heisk. 606. ' ProTideut Life Ins. Co. v. Fennell, 49 Hi. 180. 314 WARHANTY AND REPttE»ENTATION. $ 229 5 229. The I>wl|flit Case. — One of the most interesting -cuHCM rolatiiif,' to life iiiHurance fjuestion.H, di«cuBso« tliis mat- ter of occupation, and alno t lio principles of construction of life insurance contracts and cloHc^rvcrH soinewbjit full extracts. It is the famous case of Dwight v. Germania Life Insurance Co.* Jn this case, by the terms of the contract, the as- sured warranted the truth of his luinvvor.H to questions in bis application, and compliance with the U:\-n\A of the warranty was held to be a coiidilion of the contract, so that any sub- (itantial deviation from the truth in an answer must be as- 4)umed to bo material to the risk so as to forfeit the policy. Tlio court proceeded as follows: "Among the facts which the (lufondant doomed it important to know before enter- ing into a contnict of insurance with the deceased, was his previous buwiinsHs and occupation. The materiality of truthful information in relation thereto was impressed upon llic applicant by spocifio iri(iuiri(!H, and the requirement that truthful answers thereto should be made the 'condi- tion of a valid contract. With the view of eliciting the in- formation desired, a series of questions was proposed to the deceased embracing not only an inquiry as to his general business and occupation, but special inquiries as to certain particular trades and employments. Among those which we deem it imjjortant to refer to in this case were the fol- lowing: 'A. For the party whose life is proposed to be as- sured, state the business, carefully specified? Ans. Real «state and grain dealer. B. Is this business his own or does he work for other persons, and in what capacity? Ans. His own. C. In what occupation has he been en- gaged during the last ten years? Ans. Real estate and grain dealer. D. Is he now, or has he been ongaged in or connected with the manufacture or sale of any beer, wine or other intoxicating liquors? Ans. No,' • • • Upon the trial it appourod that Dwight was engaged in the busi- ' 103 N. Y. 811) 4 Cent. Bop, 62!); S N. ffiant. Bop. OSl. 315 § 229 WARRANTY AJvD EErRESENTATION. ness of keeping hotel at Binghamton, from May, 1874, until March, 1877, and that during that period he regularly and systematically sold wines and liquors, in bottles of vari- ous sizes, bearing the name of his hotel blown in the glass^ to such of his guests as desired them. He kept a wine or liquor room in which was stored a large supply of wines- and liquors, and each year while so engaged he applied, paid for and received, from the representatives of both the State and National Governments, licenses and permits,, authorizing him to carry on the business of selling beer, wine and liquors at retail, to be drank upon his premises^ It also appeared that he kept no bar and did not sell to per- sons who were not his guests. These facts were undis- puted. Their absolute truth was assumed by the trial judge- in charging the jury, and by the general term in passing- upon the appeal to that court. That the answer given by Dwightto the questions (relating to the sale of liquor) was- incorrect was admitted by both tribunals. That Dwight did not misconceive the meaning and intent of th& question conclusively appeared from repeated answers made by him to other companies within three weeks- prior to this time to similar questions in applications- for other insurance in which he stated that he had kept a hotel for three years in which liquor was sold in packages. Upon denying the motion for a non- suit, the trial court refused to pass upon the question a& to whether the facts constituted a breach of warranty or not, but left it to the jury to say whether the sales of liquor, proved to have been made, were sales at all, within the intent and meaning of the contract. In this, we think that the court erred, no question arising upon the evidence which authorized its reference to the jury. If there was any room for doubt in respect to the true meaning and in- tent of the inquiry answered by the deceased, it presented a question of law for the court to determine, and not one 316 . ' . WAKKANTY AND KEPKESENTATION. § 229 for the jury.^ But we are of the opinion that no such doubt existed in the case. The contract was in writing, subscribed by the parties, and they expressed their agree- ment in clear, unambiguous and intelligible language. Its import and meaning was not obscured by any reference to the situation and circumstances, surrounding the transaction, or by the consideration of other parts of the same instrument. On the contrary, an examination of the context and asso- ciated questions make more certain and definite its object and intent. The assured had been previously interrogated as to his general business and employment, and it is to be assumed had given such answers in respect thereto, as sat- isfied the object of the inquirer. He was then specially requested to state whether he was then, or had been, en- gaged in, or connected with the manufacture or sale of any beer, wine, or other intoxicating liquors. The information called for was made material, not only by the express agreement of the parties, but also by the object for which it was required, plainly apparent from the nature of the transaction. The question called for no opinion, and waa capable of a precise, definite and categorical answer. It was intentionally framed in broad and comprehensive terms, apparently to avoid any evasion of its object; but was^ nevertheless, expressed in clear and unambiguous language. If an intention to inquire concerning the conduct of the regular or principal business of the assured could be im- plied from the use of the word ' engaged,' an idea that such was the only meaning of the question was negatived bj the further words, ' or connected with the manufacture or sale of ayty beer, etc., which pointed unmistakably to every ' transaction of the kind described, however limited its char- acter, or remote his connection with it, Inight have been. The motive prompting the question was reasonable, natural and proper, and apparent even to the most careless reader. > Lomer v Meeker 25 N. T. 361 ; Glacius v. Black, 67 N. Y. 663. 317 § 229 WARRANTY AND REPRESENTATION. The inquiry could not have referred to the general business employment of the insured, because inquiries on that sub^ ject had previously been exhausted, and the question had no oflSce to perform in that respect. It carried upon its- face the object which the insurer had in making it, and re- quired an answer as to whether the applicant was, or had been, engaged in, or connected with, the manufacture or sale of liquors, etc., not in a limited or restricted capacity or employment, but in any and every way in which such acts could have been performed . The question itself assumes that persons engaged in or connected with the manufacture or sale of liquors in any manner were more hazardous subjects for insurance than those occupied in more reputable em- ployments, and that the insurer would regard such employ- ment as an objection to the proposed contract. The extent to which the employment affected the character of the- applicant, or his value as a risk, was a question solely for the insurer. The defendant had a right to a full and frank disclosure of any and all facts bearing upon the subject,. and this confessedly it did not obtain. It was misinformed* as to the precise fact which had been agreed upon as a fact material for it to know, in determining the propriety of enter- ing into the proposed contract, and by the party who had assented to the proposition, that such information should invalidate any contract made. If the fair import of the language used, indicates that the interrogatory intended to include within its scope and meaning single transactions or incidental occupations, neither courts nor juries have authority to say that such transactions may properly be dis- regarded in the answer made. The defendant must be deemed to have meant what it said, and its express language embraces all transactions, and its express contract has made every transaction of the kind referred to, material to the risk. * * * We are also of the opinion that the answers of the assured to the questions relating to his business and. 318 WAEEANTT AND KEPRESENTATION . § 230a- occupation, were evasive and untrue, and, upon the whole evidence required the dismissal of the complaint. There was not only an absence of satisfactory evidence in the case that he had ever been engaged in the business of* a real estate or grain dealer, for himself in the ordinary accepta- tion of those terms, but such an acceptation waS negatived by his repeated sworn declarations to the contrary, and the proof of circumstances of the most convincing character. The evidence upon these questions is substantially all to the same effect, and presents a case so preponderating in character, that a verdict against it could not be allowed to stand. The case, therefore, presented a question of law as to whether the business engaged in by the deceased, constituted him a dealer in real estate and grain, within the ordinary meaning of those terms." § 230. Answersin Regard to Parents, Relatives, etc. — The age of the parents of the applicant at the time of their death, the diseases of which they died, and facts relating to the relatives and family of the applicant are all material and must be truly stated. Answers to these questions as- sumes knowledge, as in a case, where the assured in his application answered " no" to the question whether either of his parents, brothers or sisters had ever had pulmonary, scrofulous or other constitutional or hereditary diseases, in which it was held that the answer assumed his knowledge of the fact and, in an action on the policy, the beneficiary was precluded from alleging the want of knowledge on the part of the insured as an excuse for not answering cor- rectly.^ § 230a. Family Physician. — Where questions are asked as to the family physician, or medical attendant, of the ap- plicant, they must be answered truthfully and in good faith. 1 Harlford L. & A. Ins. Co. v. Gray, 91 111. 169. 319 § 23()a EEPKE8ENTATION AND CONt.'EALMENT. Whether this has been done or not is generally a question for the jury.* As the object of the question is to obtain the name of a medical attendant who can giye information as to the quality of the life proposed, the failure to give full information may amount to a concealment, as where the applicant gave the name of a. casual medical attendant, but did not give the name of a physician who had recently attended him for delirium tremens, it was held that the duty of the applicant was to have made a full disclosure-^ So, where the applicant was asked to state the physician usually employed by him, and if he had none, to name any other doctor who could be applied to for information as to the state of his health, and he answered " none," and it was shown that he had occasionally applied to a physician for serious ailments and had been examined for insurance and rejected by another physician, it was held that the failure to state the names of the two physicians was a fraudulent concealment and avoided the policy.' The Supreme Court of Minnesota* define the term " family physician " as fol- lows: " The phrase ' family physician ' is in common use, and has not, so far as we are aware, any technical significa- tion. As used in this instance, and for the purposes of the testimony appearing in this case, the chief justice and my- ■ self are of opinion that it may be sufliciently defined as signifying the physician who usually attends and is con- sulted by the members of the family in the capacity of physician. We employ the word usually, both because we Reld B. Pieduiout & Arlington L. Ins. Co., 68 Mo. 421. 21 oJl § 231 WARRANTY AND RKPRESENTATION. home by the doctor for the same purpose be so regarded- Attendance of a physician, in the meaning of the question generally employed in applications for life insurance, must be an attendance upon the assured for some disease or ail- ment of importance and not for an indisposition of a day or two, trivial in its nature, and such as all persons are liable to and yet who are considered to be in sound health gen- erally.^ § 231. Habits: Use of Intoxicants: liiqnor, Oplom,. etc. — Applications for life insurance generally contain questions bearing upon the habits of the applicant, es- pecially in regard to the use of intoxicants, tobacco and opium. In whatever language these questions are couched the words are to be taken in their plain, ordinary meaning. As where the inquiry was whether the applicant was " sober and temperate" the court said:^ "The words, sober and temperate, are to be taken in their ordinary sense. The language does not imply total abstinence from intoxicating liquors. The moderate, temperate use of intoxicating- liquors is consistent with sobriety. But if a man use spiritous liquors to such an extent as to produce frequent intoxication, he is not sober and temperate within the mean- ing of this contract of insurance." ' " The questions as to health and habits in respect to intoxicating drinks will be taken to mean what the words employed by those ques- tions usually and commonly mean. They are not words of art, but words of every-day meaning; and this is a contract not between professional men or lawyers, but a contract that these companies profess to make with the world, and when they ask a man if his health is good there is no mys- 1 Brown V. Metropolitan L. Ins. Co. (Mich.), 32 N. W. Bep. 613; & West. Rep. 775. ' Brockway v. Mntual Benefit Life Ins. Co., 9 Fed. Rep. 253. * John Hancock Mutual Life Ins. Co. «. Daly, 65 Ind. 10. 322 WARRANTY AND REPRESENTATION. § 231 tery in the question." ^ In a case involving similar questions, decided by the Supreme Court of the United States,* after- wards approved by the same court,' the question was, " Is the party of temperate habits? Has he always been so?" and it was said: " When we speak of the habits of a per- son, we refer to his customary conduct, to pursue which he has acquired a tendency, from frequent repetitions of the same acts. It would be incorrect to say that a man has a habit of anything from a single act. A habit of early rising, for example, could not be affirmed of one because he was once seen on the streets in the morning before the sun had risen ; nor could intemperate habits be imputed to him be- cause his appearance and actions on that occasion might in- dicate a night of excessive indulgence. The court did not, therefore, err in instructing the jury that if the habits of the insured ' in the usual, ordinary, and every-day routine of his life were temperate,' the representations made are not untrue, within the meaning of the policy, although he may have had an attack of delirium tremens from an ex- ceptional over-indulgence. It could not have been contem- plated from the language used in the policy that it should become void for an occasional excess by the insured, but only when such excess had by frequent repetitions become a habit." "An occasional excess in the use of intoxicating liquor," says the Supreme Court of Ohio,* '* does not, it is^ true, constitute a habit, or make a man intemperate, within the meaning of this policy; but if the habit has been formed and is indulged in, of drinking to excess and be- coming intoxicated, whether daily and continuously, or pe- riodically, with sober intervals of greater or less length, the person addicted to such a habit cannot be said to be of 1 Swick V. Home Life Ins. Co., 2 Dill. C. C. 160. » Insurance Co. v. Foley, 105 U. S. 350. « Northwestern Life Ins. Co. v. Muskegon Bank, 122 U. S. 501. * Union Mutual Life Ina. Co. v. Beif, 36 Ohio St. 599; 38 Am. Bep. 613. 323 § 231 WAEEANTr AND REPRESENTATION. temperate habits, within the meaning of this policy. * • * The habit of using intoxicating liquors to excess is the re- sult of indulging a natural or acquired habit, by continued use, until it becomes a customary practice. This habit may manifest itself in practice by daily or periodical intox- ication or drunkenness. Within the purview of these questions it must have existed at some previous time, or at the date of the application, but- it is not essential to its existence that it should be continuously practiced, or that the insured should be daily and habitually under the influ- ence of liquor. Where the general habits of a man are either abstemious or temperate, an occasional indulgence to excess does not make him a man of intemperate habits. But if the habit is formed of drinking to excess, and the jippetite for liquor is indulged to intoxication, either con- stantly or periodically, no one will claim that his habits are temperate, though he may be duly sober for longer or shorter periods in the- intervals between the times of his debauches." In Van Valkenburgh v. American Popular Life Ins. Co.,^ the question was: " Does the insured use any intoxicating liquors or substances? " And the court held that this question did not direct the mind to a single or incidental use, but to a customary or habitual use.* False representations made by the insured concerning his habits as to temperance avoided the policy even though they were made in good faith without intent to deceive.^ The use of intoxicating liquors and drunkenness are per- nicious habits tending to shorten life.* It is for the jury to weigh all the circumstances and to determine, in view of them all, whether the applicant was habitually intemperate, 1 70 N. T. 605; 9 Hun, 583. 2 Tatum V. State, 63 Ala. 147; Mowry v. Home Life Ins. Co., 9 E. I. 346. " Hartwell v. Alabama Gold L Ins. Co., 33 La. Ann. 1353. * Schultz V. Mutual Life Ins. Co., 6 Fed. Rep. 672; Knechtc. Mutual Life Ins. Co., 90 Pa. St. 118. 3-24 WAERANTT AND REPRESENTATION. § 232 or used liquors to excess, or otherwise answered the ques- tions falsely.* Habits of intemperance acquired subsequent to the insurance, even though the cause of death, will not avoid the policy, unless expressly so stipulated.* § 232. Good Health. — In one of the earliest cases re- lating to life insurance,^ Lord Mansfield said that a war- ranty of good health meant simply that the applicant was in a reasonably good state of health, and was such a life as ought to be insured on common terms. That it did not mean that he was free from every infirmity, and, in fact, though he had one, the life might be a good one, and the fact that the insured had several years before received a wound in the loins, which so affected him that he could not retain his urine or faeces, though not mentioned, was not inconsistent with a good insurable life. Afterwards the same eminent jurist said,* in a case where it appeared that the insured was at times troubled with spasms from violent fits of the gout, though at the time of insurance in his usual state of health: "The imperfection of language is such that we have not words for every different idea, and the real intention of the parties must be found out by the sub- ject-matter. By the present policy the life is warranted in health; to others, in good health. And yet there is no difference in point of fact. Such a warranty can never mean that a man has not in him the seeds of some disorder. We are all born with the seeds of mortality in us. A man subject to the gout is a life capable of being insured, if he has no sickness at the time to make it an unequal contract." * "The word 'health' as ordinarily used," says the New > N. W. Ins. Co. V. Muskegon Bank, 128 U. S. 601. * Beichord v. Manhattan Life Ins. Co., 31 Mo. 518; Horton v. Equit- able Life A. Soc. (C. C. P. N. Y.), 2 Big. Life & Ace. Ins. Cas. 108. - Ross V. Bradshaw, 1 W. Bl. 312, A. D. 1760. * WUlis V. Poole, 2 Parke on Ins. 650. ' Watson V. Mainwaring, 4 Taunt. 763. 325 § 223 WARRANTY AND KEPKESENTATION. York Court of Appeals,' " is a relative term. It has refer- ence to the condition of the body. Thus, it is frequently characterized as perfect, as good, as indifferent and as bad. The epithet ' good ' is comparative. It does not require absolute perfection. When, therefore, one is described as being in good health, that does not necessarily nor ordina- rily mean that he is absolutely free from aU and every ill * which flesh is heir to.' If the phrase should be so inter- preted as to require entire exemption from physical ills, the number to which it would be strictly applicable would be very inconsiderable."^ Another authority' states: *' The term, good health, as here used, is to be considered in its ordinary sense, and means that ' the applicant was free from any apparent sensible disease, or symptoms of disease, and that he was unconscious of any derangement of the functions by which health could be tested.' * Slight, im- frequent, transient disturbances, not usually ending in seri- ous consequences, may be consistent with the possession of good health as that term was here employed."* When a third person is asked if the applicant is now in good health, it does not mean whether he is actually free from illness or disease, but simply that he has indicated in his actions and appearance no symptoms or traces of disease, and to the ordinary observation of a friend or relative is in truth well.* A repi-esentation that the applicant had a florid appearance, when, in fact, he was pale and emaciated, will not, of it- self, avoid a life policy of insurance, such appearance being no certain indication of disease or feebleness, and would 1 Peacock v. New York Life Ins. Co., 20 N. T. 296, afflrming 1 Bosw. 338. ' Morrison v. Odd-fellows' Mut. L. Ins. Co., 59 Wis. 170. » Goucher v. Northwestera Traveling Men's Assn., 20 Fed. Bep. 598 and note. • Conyer v. Phoenix Ins. Co., 3 Dill. 226. • Brown V. Metropolitan Life Ins. Co. (Mich.), 32 N. W. Bep. 612; 8 West. Eep. 775. • Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 274. 32(5 WARRANTY AND REPRESENTATION. § 233 not Decessarily cause the insurer to refuse the risk.^ But equivocation in the answers touching health or anything which amounts to concealment is fatal.* § 233. IJatent Diseases Unknown to Applicant. — If a representation of the applicant is that he is of sound body, and it be untrue : if itis madein good faith, without suspicion that he was of unsound body, though it afterwards be shown that he had then a fatal internal disease which caused his ■death, the policy wiU not be avoided.* But, where the ap- plicant was asked if he had disease of the heart and he an- swered no, it was held, the answers being warranties, that the policy was void if the assured died of heart disease soon afterwards, although he could not have known that he had the disease.* In a case in Indiana,* the court below in- structed the jury, the answers in the application of the in- jured being warranties, that if the assured had, at the time of making his application, some affection or ailment, of some one or more of the organs inquired about in the ap- plication, which ailment was of a character so well defined and marked as materially to derange, for a time, the func- tions of such organ, such ailment, whether known to the assured or not, would avoid the policy, and that " this would be so with reference to Bright's disease of the kid- neys, if it was such a disease as I have just mentioned."* This vi^w seems to be reasonable as well as consistent with 1 Illinois Masons' Benev. Soc. v. Winthrop, 86 111. 537. » Smith e. ^tna Life Ins. Co., 49 N Y. 211; Goucher v. N. W. Travel- ing Men's Assn., 20 Fed. Bep. 598; Northwestern Mut. Life Ins. Co. «. Heimann, 93 Ind. 24; ante, § 203. ' Schwarzbach v. Ohio VaUey P. Union, 25 W. Va. 622; Moulor v. Am. Ziife Ins. Co., Ill IT. S. 335; Life Assn., etc., «. Foster, 11 Sc. Sess. Cas. <3d series) 351; Thompson v. Weems, L. B. 9App. Cas. 671; ante, § 214. * Powers V. Northeastern Mat. L. Assn., 60 Vt. 630. ' Continental L. Ins. Co. v. Yonng, 15 N. E. Bep. 220; 12 West. Bep. 715. « Conn. Mnt. L. Insurance Co. v. Union Trust Co., 112 U. S. 250; Cushman v. U. S. Ins. Co., 70 N. Y. 72. 327 § 234 WARRANTY AND REPRESENTATION. authority. The rule, therefore, is that, where the answers to questions in the application are representations, the death of the applicant from a latent disease, which existed at the time of the application, but unknown to the applicant, he answering all questions in good faith, will not avoid the policy. But, where the answers are warranties, then the death of the applicant from a latent disease, which existed at the time when he warranted himself to be free from it^ will avoid the policy. § 234. Disease. — Before any temporary ailment can be called a disease, it must be such as to indicate a vice in the con- stitution, or be so serious as to have some bearing upon gen- eral health and the continuance of life, or such as, according to common understanding, would" be called a disease, arid such has been the uniform opinion of text-writers and courts.* So, a cold is not a disease,^ though accompanied with more or less congestion of the lungs, and though most, if not aU persons, will have at times congestion of the liver, causing- slight functional derangement and temporary illness, yet in the contemplation of parties entering into contracts of life- insurance, and having regard to general health and the con- tinuance of life, it may be safely said that there is in such cases no disease of the liver. ^ A severe sickness or disease does not include the ordinary diseases of the country, which yield readily to medical treatment and when ended leave no- 1 Cushman v. U. S. Lite Ins. Co., 70 N. T. 72; N. "W. Mut. L. Ins. Co. V. Heimann, 93 Ind. 24; 2 Park on Ins. 933-935; Chattock v. Shawe, 1 M. & R. 498; Fowkes v. The M. & L. Life Ins. Co., 8 Fost. & F. 440; Bartean v. Phoenix Mut. Life Ins. Co., 67 N. Y. 595; 1 Hun, 430; 67 Barb. 354; 3 T. & C. 676; Peacock v. N. Y. Life Ins. Co., 20 N. Y. 293; Higbie v. Guardian Mut. L. Ins. Co., 53 N. Y. 603; Pitch v. Am. Popular L. Ins. Co., 59 K. Y. 557; 17 Am. Kep. 372. * Metropolitan Life Ins. Co. v. McTague 49 N. J. L. 587; 9 Atl. Hep. 766; 8 Cent. Rep. 611. ' Cushman «. U. S. Life Ins. Co., 70 N. Y. 72; Goucher v. Northwest Traveling Men's Assn., 20 Ped. Rep. 600; N. W. Mut. Life Ins. Co. «. Heimann, 93 Ind. 24. MS WARRAXTY AND REPRESENTATION. § 234 permanent injury to the physical system, but refers to those severe attacks which often leave a permanent injury and tend to shorten life.^ When the applicant says that he has never had any " serious illness " the courts will construe the meaning to be that he has never been so seriously ill as to permanently impair his constitution and render the risk unusually hazardous.* Clearly the term "severe" or «' serious " illness does not mean slight, temporary physical disturbances or ailments, speedily and entirely recovered from, not interfering materially with the pursuit of one's- avocation, producing no permanent effect on the constitu- tion and not rendering the insurance risk more than usually hazardous.* If necessary, the court will admit evidence to- explain what is meant by the term used, as, for instance, to show that the medical term, " spitting of blood," means spitting of blood from the lungs exclusively,* or that gas- tritis and chronic gastritis are not the same, or that sub- acute rheumatism is not the disease of rheumatism.' The court wiU not hold as a matter of law that either pneumonia or sunstroke is a severe sickness or disease, but will leave the question to the jury,* nor will it say that the omission to mention a temporary injury to the eye, by sand having been thrown into it, which had produced an inflammation six years before the policy was applied for, and which was^ then cured, is conclusive evidence of fraud, or a breach of ' Holloman v. The Life Ins. Co., 1 Woods C. C. 674. ' lU. Masons Benev. Soc. v. Winthrop, 85 111. 542; Dreier v. Conti- nental L. Ins. Co., 24 Fed. Rep. 670. 3 Goucher v. N. W. Traveling Men's Assn., 20 Fed. Rep. 600; Con- necticut Mut. I.. Ins. Co. V. Union Trust Co., 112 U. S. 250; Chattock t;. Shawe, 1 M. & Rob. 498; Fowkes v. Manchester & L., etc., Ins. Co., 3 F. & F. 440; Watson v. Mainwaring, 4 Taunt. 763; Union Cent. Life Ins.. Co. v. Cheever, 11 Ins. L. J. 264 (afEd. Sup. Ct. Ohio). * Singleton v. St. Louis Ins. Co., 66 Mo. 63; 27 Am. Rep. 321. ' Price V. Phoenix Mut. L. Ins. Co., 17 Minn. 518; 10 Am. Rep. 166. « Boos ». World Mut. Life Ins. Co., 64 N. Y. 236; Knickerbocker I*. Ins. Co. ». Trefz, 104 U. S. 197. 329 ■§ 235 WARRANTY AND REPRESENTATION. the warranty.^ Nor that " chronic pharyi)gitis "is a ^'sickness" in contemplation of the parties putting the question.* By all of the foregoing cases the doctrine is established that it will be left, ordinarily, to the jury to «ay whether the applicant has answered the questions cor- rectly. In a leading case * the court says : "It was for the jury to decide whether ' chronic bronchitis ' or ' bronchial difficulty,' or aoy other bodily affection or condition to which the assured was found by them to be subject, Amounted to bronchitis, consumption, disease of the lungs, or some other of the infirmities stated in the application, and relied on by the defendants ; and whether the spitting of blood by him, if proved to have taken place, was under such circumstances as to indicate disease in his throat, lungs, air passages, or other internal organs." In England it has been held that the applicant is bound to state to the company a single instance of spitting of blood, although the same court said that the expression " has not had any spit- ting of blood ' ' does not mean that he had never spit blood, but never from unascertained causes or disease tending to shorten life.* § 235. Accident or Serions Injury. — In a case arising in Iowa the defense was that the applicant had not correctly answered the question whether the party had ever met with ^' any accidental or serious injury," and the answers being warranted true the policy was thereby avoided. The opin- ion of the Supreme Court of that State says:* " The de- iendant claims that if the insured ' ever met with any • • • 1 Fitch «. American Popular Life Ins. Co., 69 N. T. 6S7; 17 Am. Bep. 572. 2 Mutual Ben. L. Ins.Co. v. Wise, 34 Md. 699. s Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381; IBig. L. ■& A. Ins. Cas. 229. * Geach v. Ingall, 14 M. & W. 96; 15 L. J. Ex. 37; 9 Jur. 691. ' 'Wilkenson v. Conn. Mut. Life Ins. Co., 30 la. 127. 330 WAERAIfTr AND REPRESENTATION. § 235 ^accidental injury,' that will bar a recovery because the application is a warranty that she never did. In this con- struction we do not concur. The language of the question is to have a reasonable construction, in view of the pur- poses for which the question was asked. It must have jeferenceto such an accidental injury as probably would or might possibly have influenced the subsequent health or longevity of the insured. It could not refer, and could not be understood by any person reading the question for a personal answer to refer, to a simple burn upon the hand •or arm, in infancy; to a cut upon the thumb or finger, in ^outh; to a stumble and falling, or the sprain of a joint, in a more advanced age. The idea is, that such a construc- tion is to be put by the courts upon the language as an -ordinary person of, common understanding would put upon it when addressed to him for answer. The strict construc- tion or hypercriticism of the language, which would make the word 'any' an indefinite term, so as to include all injuries, -even the most trifling, would bring a just reproach upon the courts, the law, the defendant itself and its business." Upon the same subject the Supreme Court of the United States says: ^ " It is insisted by counsel for the defendant that if the injury was considered serious at the time, it la one which must be mentioned in reply to the interrogatory, and that whether any f ui'ther inquiry is expedient on the subject of its permanent influence on the health, is for the insurer to determine before making insurance. But there are grave and obvious difficulties in this construction. The accidents resulting in personal injuries, which at the mo- ment are considered by the parties serious, are so very numerous that it would be almost impossible for a person engaged in active life to recall them at the age of forty or fifty years, and if the failure to mention all such, injuries must invalidate the policy, very few would be sustained 1 Insurance Co. «. Wilkenson, 13 Wall. 222. 331 § 235 WARRANTY AXD REPRESENTATION. where thorough inquiry is made into the history of the- party whose life is the subject of insurance. There is,, besides, the question of what is to be considered a serious injury at the time. If the party gets over the injury com- pletely, without leaving any ill consequence , in a few days, it is clear that the serious aspect of the case was a mis-^ take. Is it necessary to state the injury and explain the- mistake to meet the requirements of the policy? Oa the other hand, when the question arises, as in this case, on. a trial, the jury, and not the insurer, must decide whether the injury was serious or not. In deciding this are they toi reject the evidence of the ultimate effect of the injury on the party's health, longevity, strength and other similar considerations ? This would be to leave out of view the^ essential purpose of the inquiry, and the very matters- which would throw most light on the nature of the inquiry with reference to its influence on the insurable character of the life proposed. Looking, then, to the purpose for which the information is sought by the question and to the difficulty of answering whether an injury was serious, in any other manner than by reference to its permanent or temporary influence on the health, strength, and longevity of the party, we are of opinion that the court did not err m the criterion by which it directed the jury to decide the- interrogatory propounded to them." A fracture of th& skull, whether it affected the health or not, is such a seri- ous and unusual an injury, that it must be disclosed.^ So, where a blow on the throat had caused an abrasion of the windpipe and the raising of a little blood and a conflnemenfc to the bed for three days and the attendance of a physician, it was held ^ that the evidence was sufficient to sustain a finding that the party had received a wound, hurt or serious ' Moore v. Conn. Mut. L. Ins. Co., 41 Up. Can. Q. B. 497; on appeal, 3 Ont. App. 230, the court were equally divided. » Bancroft v. Home Benefit Assn., 8 N. Y. St. Eep. (Superior Ct.) 129. 332 WARRANTY AND REPRESENTATION. § 235 fcodily injury. In a case in PennsylTania, ^ where the questions and answers were these: " 4. Have you been subject to or had any of the following disorders •or diseases * » * Open sores, lumps, or swelling of -any kind? Ans. Nothing of that kind to my knowledge. 9. Have you ever had any malformation, illness or injury, ■or undergone any surgical operation? Ans. No." The court said: " These questions, it must be admitted, are in the most general terms, and if they are to be so read and understood, they are not only unreasonable but absurd. A slight cutting of the finger, with a pen knife, may for a time produce both an open sore and a swelling; the mere indisposition arising from cold is an illness ; the stubbing ■of a toe is an injury; and the most trivial operations with hand or knife may be said to be surgical. It would be impossible for a person of mature years to remember, and absurd for the association to inquire as to the common and trivial ailments or injuries he may have suffered from his earliest childhood, and it is unreasonable to suppose that these were in contemplation of the parties. The form of the fourth question indicates, however, that the open sore or swelling intended, is such as results from ' disease or disorder,' that is to say, such as result by defective action, from some functional derangement, and not from wounds or accidental injuries, and the court was right, we think, in saying that they were to some extent permanent or continuous, connected or recurrent. So, the illness or injur}"- referred to, must be of such nature and importance as would reasonably fall within the line of inquiry proper to be pursued in such cases. We do not say that the illness or injury must be such as would be ma- terial to the risk, but such as in the judgment of the jury was reasonably in contemplation of the parties, in view of » Home, etc., Life Association v. Gillespie, 110 Pa. St. 88; 1 Atl. Eep. SiO; 1 Cent. Eep. 134. 333 § 235 WAKRANTT AND RKPKB8ENTATION. the nature of the matter under consideration. If the lin^ of distinction is obscure, and difficult to draw, the fault i» with the association for making it so. We do not belieye that the assured was expected or required to remember and to recite in his application all of the trivial ailments of his life." 334 CHAPTER Vn. DESIGNATION OF BENEFICIABY: INStTRABLE INTEREST. § 236. Benefit of Beneficiary Association is paid to a Person Designated by the Member, or by the Laws of the Society. 237. Member has no Property in Benefit but only Power to Designate Beneficiary. 2.S8. This Power may be General or Special. 239. Execution of Power must be in Compliance with Terms of In- strument Creating it. 210. Equity sometimes Aids Defective Execution. 241. Consequences of Failure to Execute Power. 242. Designation of Beneficiary sometimes Condition Precedent of So- ciety's Liability. 243. When Designation of Beneficiary Lapses. 244. Limitations . on Power, Restricting the Designation to Certain Classes. 245. The same Subject: A more Liberal View. 246. Unless Contract or Statute Forbids, Choice of Beneficiary is Un- limited. 247. Liberal Construction of Charter and By-laws : Lex Loci, 248. Insurable Interest. 249. The same Subject : Wagering Policies. 250. The same Subject: Relatives; Creditors. 251. General Rule. 252. The Doctrine of Insu3»ble Interest Applied to Contracts of Benefit Societies. 253. Policy or Designation of Beneficiary Valid in its Inception Re- mains so. 254. Lawfulness of Designation of Beneficiary a Question of Con- struction. 255. Rules of Construction in Cases of Designation of Beneficiary. 256. Family. 257. Children. 258. Orphans. 269. Widow. 260. Heirs. 260a. Relatives. 261. Dependents. 262. Legal Representatives : Devisee : Legatee. 335 ^ 237 DESIGNATION OF BENEFICIAET. 263. Ambiguous Designation: "Estate." 264. Several Beneficiaries . Construction. 266. Incorporated and Unincorporated Benefit Societies ; Ultra Vires. § 236. Benefit of Beneficiary Association is Paid to a Person Designated by the Member, or by the Lacws of the Society. — Nearly all benefit societies have for their prin- cipal object the payment of a stated sum of money upon the death of a member to his properly designated benefi- ficiary, or, in default of such designation, then to his wid- ow, children or heirs, as provided in the charter or by-laws of the society. Under some circumstances, if no designa- tion is made as required by the fundamental law of the or- ganization, the benefit may revert to the society. The authorities agree that the contract entered into by a benefit society with its members is executory in its nature and is ■contained in the certificate, if any be issued, taken in connec- tion with the charter, or constitution and by-laws of the organization, and the statutes of the State under which it is formed. To the terms of this contract the member is oonclusively presumed to have assented when he became such.i § 237. Member has no Property in Benefit, but only Power to Designate Beneficiary. — The member of the •society as such has, under this contract, no interest nor property in this benefit, but simply the power to appoint «ome one to receive it. By the definition usually given a power is technically " an authority by which one person 1 Hellenberg v. District No. 1, etc., 94 N. T. 580; Maryland Mutual B. Assn. V. Clendinen, 44 Md. 429; Arthur et al. y. Odd-fellows' Ben. Assn., 39 Ohio St. 557; Belief Assn. v. McAuley, 2 Mackey, 70; Barton v. Provident Relief Assn., 63 N. H. 535; Richmond «. Johnson, 28 Minn. 447; Greeno v. Greeno, 23 Hun. 478; Masonic Mut. Ben. Soc. w. Burk- hart, 110 Ind. 189; 10 N.East. Rep. 79; 7 West. Rep. 527; Van Bibber's Adm. V. Van Bibber, 82 Ky. 347; Worley v. Northvrestern Masonic, etc., 10 Fed. Rep. 227; Kentucky Masonic, etc., Ins. Co. v. Miller, 13 Bush, 489; Hammerstein v. Parsons, 29 Mo. App. 509. 336 DESIGNATION OF BENEFIOIARY. § 237 enables the other to do some act for him.^ " That a member of a benefit society has only this power, and nothing else, was decided in an early case in which the right was fully •discussed.* In that case a power was defined to be "a liberty or authority reserved by, or limited to, a party to "dispose of real or personal property for his own benefit, or for the benefit of others, and operating upon an estate or interest, vested either in himself or in some other person ; the liberty or authority, however, not being derived out of such estate or interest, but overreaching or superseding it either wholly or partially." ^ It has been said: " That a person having a power over property has not in strictness Any interest in, or right or title to, the property to which the power relates, appears in early authorities." * This ■definition is not strictlj"^ accurate when applied to the pow- •ers possessed by members of benefit societies, yet probably is sufficiently so for all practical purposes. This right of •designation is a naked power because it is a right or author- ity disconnected from any interest of the donee in the isubject-matter, and is governed generally by the rules ap- plicable to that class of powers." In the very first oases relating to benefit societies this principle was clearly recog- nized. In 1876 the Supreme Court of Ohio* construed the Tights of the member in the benefit to be a power to appoint a beneficiary, and a similar case had been decided in the same way the year before by the Supreme Court of Maryland.' In this case the residuary legatees under the will of a deceased member, who left no wife nor children, sued to recover the ■benefit. This benefit was not specifically mentioned in the > Bouv. Law Die. tit., Power; 2 Lilly Abr. 339. ' Maryland Mut. Ben.'Soc. v. Clendinen, ii Md. 433. » But. Note 1, Co. Litt. 3426.' * Albany's Case, 1 Rep. 1106; Lampet's Case, 10 Rep. 486; Co. Litt. 2666. ' Bloomer v. Waldron, 3 Hill, 365. • Arthnr et al. o. Odd-fellows' Ben. Assn., 29 Ohio St. 657. ' Maryland Mat. Ben. Soc. v. Clendinen, 44 Md. 429; 22 Am. Rep. S3. 22 337 § 237 DESIGNATION OF BENEFICIARY. will. The charter of the defendant provided that the fond should be paid upon the death of a member " to the widow, child, children, or such person or persons to whom the de- ceased may have disposed of the same by will or assign- ment." If there were none of these parties, and no dis- position by will or assignment, then, after payment of funeral expenses, the balance was to revert to the society. The court said: "The interest acquired by a member of this association is not one payable to himself, or for his own benefit, further than his funeral expenses. It is not a ' debitum inproesenti, solvendum infuturo; ' if the deceased had only a power, and not an interest or property in the sum or fund, it was not assets. In 2 Chance on Powers,' it is said : ' That an ordinary power is not in itself assets, is^ clear from all the cases.' This cannot be classed among^ the assets to be returned by an administrator in his inven- tory ; it is not a chose in action or any species of personal property. We know of no case in which the^'us disponendi authorized by charter, under provisions like the present, has been declared a mere power ; but powers arise at com- mon law, under bonds to convey estates as another shall appoint, or pay sums of money as another shall appoint, either generally, or among children, or under covenants for like purposes.* We cannot see why an authority or privilege acquired under a charter, to be exercised for the benefit of another should not be governed by the same rules." And the benefit reverted to the society as there was no disposi- tion by will or assignment according to the terms of the con- tract. A similar case afterwards arose in New York. In this case the charter provided that the fund should be " paid to the wife of the deceased, if living, and. if dead to his chil- dren, and, if there are none, then to such person as he may 1 § 1820. » 3 Atk. 656; 1 Vesey sr. 86; Cro. Car. 219, 376, and other cases cite* in 1 Chance on Powers. 338 DESIGNATION OF BESEFICIAKY. § 237 formally have designated to his lodge prior to his decease." The deceased had no wife nor children and so formally des- ignated his mother, who died before him. He afterwards, and before his mother's death, made a will in which the benefit was given to his mother, or in case of her prior de- cease, then to his brother. The suit was brought by the executor under this will against the society and, in affirming the judgment of the lower court for the defendant, the Court of Appeals said:^ " The charter and by-laws of the defendant corporation' constituted the terms of an execu- tory contract to which the testator assented when he ac- cepted admission into the order. The testator agreed on his part to pay certain dues and assessments as specified and the corporation agreed upon the death of the testator to pay $1,000 to his wife, if living; if dead, to his chil- dren; 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; ' such sum to be collected for that purpose by assessments. The corpo- ration contracted to pay to no one else, and were not bound to pay at all except ' to the person or persons ' described in the agreement, and out of such collected assessments. Lowenstein, the plaintiff's testator, did so designate to his lodge, prior to his decease, his mother, Bika Lowenstein. He had neither wife nor children, and so was at liberty to select and name the beneficiary. The designation which he thus made describes the payment directed as ' the $1,000 my heirs are to receive ' of the corporation. This language was purely matter of description, intended to identify the fund, and will not at all bear the interpretation sought to be pot upon it of a designation of his ' heirs ' as the re- cipients. On the contrary, the paper itself excluded any such interpretation, for its very purpose was to name and designate the particular recipient, irrespective of the ques- 1 Hellenberg e. Diet. No. 1., I. O. B. B., 94 X. Y. 580. 339 § 237 DESIGNATION OF BENEFICIAKV. tion whether she should prove to be one of his heirs or not. If his mother had been living at his death she would have been entitled to the endowment because specifically named, and not by virtue of any relationship to the testator. The mother thus named had no interest in or title to the money to be paid while she was living. The testator could at any time have gone to his lodsre and designated upon the books some other recipient, thus Revoking his previous designa- tion. The mother could not become entitled to the endow- ment at all unless she survived the testator, and her designation remained unrevoked. Nor did the testator have any interest in the future fund. He had simply a power of appointment, authority to designate the ultimate beneficiary, and that power and authority died with him, because it could only be exercised by him, and prior to his decease. If he did not so exercise it, nobody surviving or representing him could, and upon his death he could have nothing which would descend or upon which a will could operate. His contract effected that result. He agreed tliat the endowment to be collected should be paid not to his next of kin, not to the legatee named in his will, but to the person designated to his lodge, or in default of such person so named then to nobody." ^ All of the authorities agree that the rights of the members of benefit societies in the sums agreed to be paid at death is simply the power to appoint the beneficiary and that the constitution, or •charter, and the by-laws are the foundation and source of such power.^ The cases must not, however, be understood • Bishop V. Empire Order Mut. Aid, 43 Hun, 472. 2 Greeno «. Greeno, 23 Hun, 479; Barton o. Provident Mut. Belief Assn., 63 N. H. 535; 1 N. Eng. Rep. 856; Eastman ». Provident Mut. E. Assn. (N. H.), 20 C. L. J. 266; "Worley v. N. W. Mass. Aid Assn., 10 I"ed. Kep. 227; Gentry v. Sup. Lodge K. of H., 23 Fed. Rep. 718; Swift «. Ry. Cond. Mut. Assn., 96 111. 309; Masonic Mut. R. Assn. v. McAuley ' 2 Mackey, 70; Presb. Ass. Fund v. Allen, 106 Ind. 593; Masonic Mut. Ben. Soc. v. Burkhart, 110 Ind. 189; 10 N. East. Rep. 79; 7 West. Rep. 627 ; Richmond v. Johnson, 28 Minn. 447 ; Ky. Masonic Mut. 340 DESIGNATION OF BEXEFICIAET. § 239 to hold that the member of a benefit society has not a prop- erty right in the contract of membership, under which he has the power to designate a recipient of the benefit to be paid, because of such membership and under the contract. The right of the member in this contract is a valuable one, which the courts will at all times recognize and protect, although, strictly speaking, such member has no property interest in the benefit paid, or subject of the power. The membership, which includes the right to pay the agreed consideration and to appoint a person to take the benefit, must be regarded as a species of property and is to be dis- tinguished from the benefit, or sum to be paid, itself, in which the member has no property. > § 238. This Power may be General or Special. — The power of a member to appoint a beneficiary may be general, if by the contract he is at liberty to appoint to whom he pleases, or special if he is restricted to an appointment to or among particular classes only .^ And we shall see as we pro- farther, the power, in nearly every instance, is special, be- cause the appointment is limited to person s of a specified class . § 239. EJxecntion of Power Must be in Compliance With Terms of Instrument Creating It. — It follows, from the preceding citations, and also from general principles,^ that the execution of the power, to be valid, must be in precise compliance with the terms of the contract creating such power.^ As Sugden * says : •• Where forms are imposed on Life Ins. Co. v. Miller, 13 Bush, 489; "Van Bibber's Admr. v. Van Bibber, 82 Ky. 347; Sup. Counc. CathoUc M. B. A. v. Priest et al., 46 Mich. 429; Dnrian v. Central Yerein, 7 Daly, 168 ; Tennessee Lodge v. Ladd, 5 Lea, 716; Arthur v. Odd-fellows' B. Ass., 29 Ohio St. 557; DuvaU v. Good- son, 79 Ky. 224. 1 2 Washb. on Real Prop. 307. » 2 Washb. on Real Prop. 317; 1 Sugden on Powers, 250. s Elliott V. Whedbee, 94 N. C. 115; Sap. L. K. & L. of H. v. Grace, 60 Tex. 571. * 1 Sugden on Powers, 250. 341 § 239 DESIGNATION OF BENEFICIARY. the execution of a power it is either to protect the remain- der-man from a charge in any other mode, or to preserve the person to whom it is given from a hasty and unadvised execution of the power. In each case the circumstances must be strictly complied with ; in the first it would be in direct opposition to the agreement to consider the estate charged when the mode pointed out is not adhered to ; in the second, to dispense with the solemnities and forms re- quired to attend the execution of the power, is to deprive a man of the bridle which he has thought proper to impose on his weakness or frailty of mind, in order effectually to guard himself against fraud or imposition. Besides, the cir- cumstances required to the execution of a power are perfectly arbitrary, and (except only as they are in fact required) un- essential in point of effect to the validity of any instrument by which the power may be exercised." Consequently, a power to designate by deed, or written instrument in the nature of a deed, cannot be executed by will, or vice versa?- , In executing this power, the instrument or will, if such dis- position be allowed, should refer to it so as to show that the donee had in view the subject of the power at the time. The law itself prescribes no particular ceremonies to be obserred in the execution of a power except those required for the execution of the instrument executing the power, , as of a deed or will, in which case the requisite formalities of execution or attestation must be complied with. The contract creating the power governs in all respects its exe- cution.^ The benefit will not pass under the residuary clalEe of a will, nor by general disposition of all of the 1 2 Washb. on Real Prop. 317; 1 Sugden on Powers, 255; Worley v. N. W. Masonic Aid Ass., 10 Fed. Rep. 227; Daniels v. Pratt, 1*3 Mass. 216; 10 N. East. Rep. 166; 3 N. Eng. R. 180. » 1 Sugden on Powers, 250, 255; 2 Washb. on Real Prop. 317; Pres- byterian Ass. Fund v. Allen, 106 Ind. 593; 7 N. East. Rep. 317; 4 West Rep. 712; Am. Legion of Honor v. Ferry, 110 Mass. 580; 5 N. East. Rep. «31; IN. Eng. Rep. 716. 342 DESIGNATION OF BENEFICIAET. § 240 testator's property,^ unless some authority providing other- wise is found in the laws of the organization.^ It has been held that defects or irregularities in the form or manner of designation may be waived by the lodge ; ' but this is against the weight of authority, which is in favor of the rule that the required formalities in the laws of the society relative to designation of beneficiary are part of the contract.* § 240. Gqnity Sometiines Aids Defective Execution. — Equity will sometimes'interfere to remedy a defective exe- cution of a power, but the case must be very clear and no opposing equity must exist.* It has been held * that a cer- tificate in a benefit society may be reformed after the death •of a member by inserting the name of the beneficiary when it appears that the secretary of the society and the member both understood that the name should be entered on the record without further direction. The ipupreme Court of Michigan has said upon this subject:^ "It is possible — -and we need not consider under what circumstances — that when a member has executed and delivered to the reporter ■(secretary) his attested surrender in favor of a competent beneficiary, his death, before a new certificate is issued, may leave his power of designation so far executed as to «nable a court of equity to relieve agi^inst the accident." ' 1 Arthur v. Odd-fellows' Assn., 29 Ohio St. 667; Maryland Mut Ben. Assn. V. Clendinen, 44 Md. 429; 22 Am. Hep. 62; Hellenberg v. Dlst. No. I, I. O. B. B., 94 N. Y. 580; Morey v. Michael, 18 Md. 241; Highland v. Highland, 109 111. 366; Greeno v. Greeno, 23 Hon, 478; Eastman v. Prov- ident B. Soc. (N. H.), 20 Cent. L. J. 267; contra, St. John's Mite Soc. v. Bnckly (D. C), 6 Mackey, 406; 6 Cent. B. 292; Bown c. Catholic M. Ben. Assn., 33 Hnn, 268; Eepler v. Sup. L. Knights of Honor, 45 Hon, 271. * Weil V. Trafford, 3 Tenn. Ch. 108. ' Eepler v. Sap. Lodge E. of H., 45 Hun, 274; post, § 308. * See post, § 307, * 1 Story £q. Jnr. 181, 182, et seq. * Scott V. Provident Mat. R. Assn., 63 N. H. 666; 2 N. Eng. Bep. 286. ' Knights of Honor o. Nairn, 60 Mich. 44; 26 N. W. Bep. 826. * See post, § 284. 343 § 241 DESIGNATION OF BENEFICIARY. § 241. Consequences of Failure to Execute Power. — The member of a benefit association having no interest nor property in the fund stipulated to be paid on his death to- his appointee, but simply the power of appointment, fail- ure to so appoint leaves the fund to be disposed of as pro- vided for in the contract creating the power, and if no disposition is so provided for, then there is a total lapse of the power and the fund will revert to the society. In no case is this fund assets, and if collected by the executor or administrator it is to be regarded as a trust fund held for the benefit of the person entitled to it and the creditors- cannot share in it. However the disposition of the bene- fit is determined by the charter and by-laws of the society and is to be ordered accordingly.^ In a recent case,^ which was an action brought by plaintiff as the administrator of one Gigar, to recover the benefit stipulated to be paid by the defendant society, the society was organized for the ob- ject of securing " to dependent and loved ones assistance and relief at the death of a member," and by the by-laws, the benefit was payable ' ' to such person or persons as he- might by entry on the record book of the association or on the face of his certificate, direct the sum to be paid." No person was designated by the deceased on the record book or the face of the certificate. The defendant society 1 Eastman'e. Prov. Belief, etc., Soc, 20 C. L. J. 266; Worley v. N. W> Mas. Aid, etc., 10 Fed. Sep. 227 ; Daniels v. Pratt, 143 Mass. 216; 10 N. East. Kep. 166; 3 N. Eng. Rep. 480; Hellenberg v. Dist. No.l, I. 0. B. B., 94 N. Y. 680; Maryland, etc. v. Clendinen, 44 Md. 429; Greeno c. Greeno, 23 Hun. 478; Gould «. Emerson, 99 Mass. 154; Van Bibber's- Admr.c. Van Bibber, 82 Ky. 347; Duvall v. Goodson, 79 Ky. 224; Ma- sonic Eel. Assn. v. McAuley, 2 Mackey,70; McClure v. Johnson, 56 la. 620; Ballou v. Gile, Admr., 60 Wis. 614; American Legion of Honor t). Perry, 140 Mass. 680; 5 N. East. Rep. 634; IN. Eng Rep. 715; Sup. Counc, etc., v. Priest, 46 Mich. 429; 9 N. W. Rep. 481; Whitehurst, Admr., v. Whitehurst (Va.), 1 S. E. Riip. 801; Covenant Mut. Benedt Assn. V. Sears et al., 114 111. 108; Swift v. San Francisco S. & E. Board, 67 Cal. 567; Fenn o. Lewis, 10 Mo. App. 478. 2 Eastman v. Provident Mut. Rel. Assn., 20 C. L. J. 266. 344 DESIGNATION OF BENEFICIARY. § 241 offered to show by parol testimony that the deceased intended that the benefit should go to his affianced, and had often so declared. The Supreme Court of New Hampshire, in affirming judgment for the defeifdants, said: " The cer- tificate was neither payable to the deceased, nor to his ad- ministrator, assigns, heirs, estate, or legal representatives. The defendant promised to pay the benefit to no one, save such person or persons as Gigar should direct by entry upon the certificate or record book of the association. By- the contract he had the mere power of appointing the per- son who should receive the benefit. He was bound by the- rules of the association, and could not chanee the benefi- ciary in a way not in conformity with them. We cannot know why he did not exercise his power of directing to- whom the benefit should be paid. He may not have decided in his mind who should receive it. He may have intended that his associate members should not be called upon to contribute the sums required to fulfill his contract with the association. The only presumption is that he intended not to do what he omitted to do.^ He had no personal interest in his membership and his per- sonal representative, as such, can take no interest in it after his death. The benefit is not assets, for if the admin- istrator can collect the money it must go primarily to Gigar' 8 creditors. The charter, by-laws and certificate,, all show that neither party had any such understanding. If Gigar had exercised the power of appointment, it is plain that the administrator could not maintain a suit to recover the money. How does Gigar' s neglect to exercise it give him the power ? There being no contract to pay to Gigar or to his legal representative, there is no breach. 'J'he plaintiff fails. In Worley v. N. W. Masonic Aid, etc.,'^ the facts are similar to those in this case and it 1 Worley r.N. W. Mas. Aid., Ass. 10 Fed. Rep. 227; 11 Ins. L. J. 141. ' iSupra. 345 ^ 241 DESIGNATION OF BENKFICIAKT. was held that the plaintiff, who was administrator of the assured, could not recover. McClure, Exr. v. Johnson,^ decides that where a life policy, by its terms, is payable to a piTson other than the assured or his representatives, the payee cannot by will make a different disposition of the fund from that directed by the policy. Our conclusion is that the plaintiff cannot recover. The evidence offered aa to Gigar's intention as to whom the money should be made payable, was inadmissible to vary the construction of the certificate, and was insuflScient to constitute a trust." ' The Court of Appeals of Kentucky, in passing if^on a case involving the disposition of a benefit,' says: "A life policy for the benefit of the family of the person procuring, though not a testament, is in the nature of a testament, and in construing it the courts should treat it, as far as possible, as a will, as in so doing they will more nearly approximate the intention of the persons the destination of whose bounty is involved in such cases. As said in a former case, it is not to be supposed that a father, in procuring insur- ance on his own life for the benefit of his family, or ih keeping such a policy alive, intends to benefit himself or his estate, and especially is that true when, by the terms of of the charter of the company in which he insures, with which he must be supposed to be familiar, he cannot take insurance for the benefit of any one except his wife or chil- dren, if he have either, and cannot dispose of the insurance if he leave either wife or child surviving. We, therefore, ■conclude that the charter gave the member a mere power -of appointment in case he has neither wife nor child, and that he has no interest whatever in the fund, and, there- fore, it did not pass under a will merely disposing of all his estate, but in which no mention is made of the fund to 1 56 la. 620. * Wason V. Colbum, 99 Mass. 342. » Duvall, etc., v. Goodson, 79 Ky. 224. 346 ■ DESIGNATION OF BENEFICIARY. § 242 arise from his membership." ^ In a case decided by the Supreme Court of Illiiiois,^ where the charter of defend- ant declared the objects of the association to be " to afford financial aid and assistance to the widows, orphans, heirs or devisees of deceased members," and the certificate was payable to the members, " devisees, as provided in last will and testament, or in event of their prior death, to the legal heir or devisees of the certificate holder," the member died intestate and the complainants, his only heirs, brought a bill to recover the benefit money. The court ield that the clear intent was that the devisees, or the heirs — one or either of them should take. That if there T?ere no devisees then to the heir.* § 242. Desiguatlon of Beneficiary Sometimes Condi- -tion Precedent of Society's liiability. — A case was re- cently decided by the Supreme Court of New York,* in which it was held that, under the laws of the society, the designation of a beneficiary on the part of the member was ^ condition precedent of its liability. In that case the charter of the society from the State provided that the ob- ject of the corporation should be, among other things, to " aid, assist and support members or their families in case ■of want, sickness or death." The charter provided for a beneficiary fund, to be maintained by the order for this ob- ject, which should be under the control of the grand lodge and from which a specified sum should be paid over to the families, heirs or legal representatives of deceased or dis- abled members, or to such person or persons as such de- ceased member may, while living, have directed, and also that the maimer and time of payment and the persons to whom payment was to be made should be regulated by the I ' See atOe, § 239. > CoTenant Mntoal Ben. Assn. e. Sears, 114 111. 108. ' See also Smith v. Covenant, etc., Assn., 24 Fed. Rep. 685. -* Bishop V. Empire Order of Mutual Aid, 43 Hnn, 472. 347 § 243 DESIGNATION OF BENEFICIARY. rules and by-laws of said grand lodge. These rules pro- vided for the issue of a certificate which, among other- things, should set forth the name of the person to whom, the benefit was payable. In this case no certificate was ever issued, but suit was brought against the order for the benefit and the court held the defendant not liable, saying : " The charter and by-laws, respecting the designatiqu of the person to whom the beneficiary fund shall be made- payable, were a part of the contract with the defendant,, which the intestate entered into when he became a member,, and as their provisions have not been complied with, the defendant is not liable." It held also, that " such designar- tion is' made the condition precedent of the defendant's liability." ^ § 243. When designation of Beneficiary Liapses. — In. event of the death of the party designated in the lifetime- of a member of the society, then there is also a failure of the exercise of the power, and, unless the contract provides^ otherwise, or there is another designation of a person en- titled to take, the power lapses and the society takes by reversion. This rule has always been applied, one of th& first precedents being the early case of Oke v. Heath,* where Lord Hardwicke held, the case being one where an. appointee, by a will, died in the lifetime of the testator, who had power only to appoint by will, that by such death: the appointment became void. The quaint language used: will apply to the exercise of powers by members of benefit- societies, which are as a rule revocable, for he says : " Then she, executing her power by will, it must be construed to all intents like a will; the conditions of which are, that it is ambulatory, revocable and incomplete till her death; nor can any one dying in the testator's life, take under it." ' See Order Hnt. Companions v. Griest (Cal.), 18 Pac. Eep. 652. • 1 Ves. sr. 139. 348 DESIGNATION OF BENEFICIARY. § 243 Other old cases are to the same effect.^ Modern authority follows the older precedents.* It is but fair, however, to «tate that in a majority of these late authorities the reason •of the decision has been, not the lapse of the designation, because it was ambulatory and liable to be revoked by the death of the appointee before that of the member, but a •construction of the supposed intention of such member. One of the principal cases arose in the District of Colum- bia.^ A member of the association designated his wife as the beneficiary of the fufid ; she died and he married again, but soon afterwards died, without changing his first ap- pointment. The by-laws provided that on the death of a member- the fund accruing because of the membership, should be paid to " his widow, orphan, heir, assignee or legatee;" the right of the member to designate the bene- ficiary was recognized and this designation could be changed with the consent of the board of directors. If the member Nairn, 60 Mich. 44; Daniels v. Pratt, 143 Mass. 216; Bishop on Contr. §§ 1383-1389 Inc. 3 Bingham's Appeal, 64 Pa. St. 345. 3(30 DESIGNATION OF BENEFICIARY. § 248^ out of these they cannot go. The subject of insurable in- terest is a most important one in the law of life insurance, for it has often been considered by the courts in the re- ported cases and has been discussed with great earnestness and vigorous reasoning. Though the contract of life in- surance is not strictly one of indemnity, the policy of the law does not permit any one to insure the life of another in which he has not at the time what is called an insurable interest, because such contract would be in the nature of a wager or speculation in human life. The Supreme Court of the United States, in passing upon the point whether a divorced woman could recover upon a policy of insurance on the life of a former husband,^ reviews the law of insur- able interest as follows : " It is generally agreed that mere wager policies, that is, policies in which the assured party has no interest whatever in the matter insured, but only an interest in its loss or destruction, are void as against public policy. • * * But precisely what interest is necessary in order to take a policy out of the category of mere wager has been the subject of much discussion. In marine and fire insurance the difficulty is not so great because there insurance is construed as strictly an indemnity. But in life insurance the loss can seldom be measured by pecuniary values. Still an interest of some sort in the insured life must exist. A man cannot take out insurance on the life of a total stranger,, nor on that of one who is not so connected with him as to make the continuance of the life a matter of some real in- terest to him. It is well settled that a man has an insurable interest in his own life and in that of his wife and children ; a woman in the life of her husband; and the creditor in the life of his debtor. Indeed it may be said generally that any reasonable expectation of pecuniary benefit or advantage from the continued life of another creates an insurable interest in such life. And there is no doubt that a mao. 1 Connecticut Life Insurance Company v. Schaefer, 94 U. S. 457. 361 •§ 248 DEMGNATION OF BENEFICIARY. may effect an insurance on his own life for the benefit of a relative or friend ; or two or more persons on their joint lives for the benefit of the survivor or survivors. The old tontines were based substantially on this principle and their validity has never been caUed in question. The essential thing is that the policy snail be obtained in good faith, and not for the purpose of speculating upon the hazard of a life in which the insured has no interest. On this point the remarks of Chief Justice Shaw, in a case which arose in Connecticut (in which State the present policy originated), seem to us characterized by great good sense. He says: ^ ■* In discussing the question in this commonwealth (Massachu- setts) we are to consider it solely as a question of common law, unaffected by the statute of 14 Geo. in. passed about the time of the commencement of the revolution and never adopted in this State. All, therefore, which it seems neces- sary to show, in order to take the case out of the objection of being a wager policy, is that the insured has some interest in the cestui que vie; that his temporal affairs, his just hopes and well grounded expectations of support, of patronage and advantage in life, will be impaired ; so that the real pur- pose is not a wager, but to secure such advantages, sup- posed to depend on the life of another ; such we suppose, would be sufficient to prevent it from being regarded as a mere wager. Whatever may be the nature of such in- terest, and whatever the amount insured, it can work no injury to the insurers, because the premium is proportioned to the amount; and whether the insurance be a large or small amount the premium is competed to be a precise equiv- alent for the risk taken. We cannot doubt,' he continues, * that a parent has an interest in the life of a child and vice versa, a child in the life of a parent ; not merely on the ground of a provision of law that parents and grandparents are bound to support their lineal kindred when they may 1 Loomis V. Insurance Co., 6 Gray, 399. 362 DESIGNATION OF BENEFICIART. § 249 stand in need of relief, but upon considerations of strong morals, and the force of natural affection between near kin- dred, operating often more efficaciously than those of posi- tive law.' We concur in these views. * * * We do not hesitate to say however that a policy taken out in good faith and valid at its inception, is not avoided by the cessation of the insurable interest, unless such be the necessaiy effect of the provisions of the policy itself.^ Of course, a colorable or merely temporary interest would present circumstances from which want of good faith and intent to evade the rule might be inferred. And in cases where the insurance is effected merely by way of indemnity, as where a creditor insures the life of his debtor, for the purpose of securing his debt, the amount of insurable interest is the amount of the debt." The rule prevails in England under judicial construction of the statute of 14 Geo. III.'' that there must be an interest 3.t the time of effecting the insurance, but that it need not •continue until death.' § 249. The Same Sabject: Wagering Policies. — As «aid in the citation just made, the right of a man to insure his own life and make the policy payable to whomsoever he chooses irrespective of the question of insurable interest, has never been doubted,* but the transaction must not be ■a cover for a speculation and wager contravening the gen- 1 See Tylerc. Odd-feUows, etc., 145 Mass. 134 ; 6 N. Eng. Eep. 191 ; 13 N. East. Rep. 360. * Dalby v. Ins. Co., 16 C. B. 365, overruling Godsall v. Boldero, 9 East, 72; Law v. Lond. I. P. Co., 3 Eq. R. 338; 1 Kay & J. 223; 124 L. J. €h. 196; 1 Jut. (n. 8.) 178. » Post, §§ 253 and 397. * Connecticat Mut. Life Ins. Co. v. Schaefer, supra; Mtaa. Life Ins. Co. ». France, 94 tJ. S. 561; Goodrich v. Treat, 3 Colo. 408; Lemon o. Phcenix M. L. Ins. Co., 38 Conn. 294: Falrchild v. N. E. M. L. Assn., 51 Vt. 613; North Am. L. Ins. Co. v. Cralgen, 6 Russ. & G. (Nova Scotia) 440; Elkhart, etc., «. Houghton, 103 Ind. 286; 2 N. East. Rep. 763; 1 West. Kep. -J84; Bloomington M. L. B. Assn. v. Blue, 120 m. 121; 11 N. East. l{ep. 331 ; 8 West. Rep. 642. 363 ■5 Z4y DESIGNATION OF BENEFICIARY. eral policy of the law.* In a recent case in Pennsylvania,*' a State where the subject of insurable interest and wagering policies has been much discussed, the Supreme Court gives an intimation as to what should be a rule in determining insurable interest and what makes the policy a wagering one. In this case the action was brought by the adminis- trators of Grant to recover the amount of a policy taken out by Kline on Grant's life, less the debt of Grant to- Kline. The policy had been made payable to Kline and was for the sum of $3,000, while the debt of Grant was only $743, as Kline claimed, or $214 as claimed by the ad- ministrators. The court said: "It was not disputed at the trial below that there was a bona fide indebtedness of Grant to Kline, at the time the policy was taken out, of something- over $300. It was also in evidence that one or more poli- cies had been taken out on Grant's life for Kline's benefit prior to the policy in question. These policies had been abandoned because of the insolvency of the companies, or for other sufficient reason. Kline had paid in premiums thereon- several hundred dollars. While the money thus fruitlessly paid in premiums may not have amounted to an insurablfr interest in the life of Grant, for the reason that such pay- ments did not make him a creditor for their amount, we think they show good faith in the transaction. This case is to be determined upon the facts as they existed at the time the last policy was taken out ; and, if both Grant and Kline saw proper to treat the premiums paid as an insurable interest, Grant's administrators have no standing to say 1 Mntnal Ben. Assn. v. Hoyt, 46 Mich. 473; Stevens ». Warren, 101 Mass. 564; Keystone M. B. Assn. v. Norris, 115 Pa. St. 446; 8 Atl. Eep. 638; T Cent.Kep. 204; Rnthc. Eatterman, 112 Pa. St. 251; GUbert v. Moose, 104 Pa. St. 74. In this case the court says: " If we admit that one man may insure his life for the benefit of another, who is neither a relative nor a creditor, our whole doctrine concerning wagering policies goes by the board." Insurance Co. o. Hogan, 80 lU. 35; 22 Am. Rep. 180; Cam- mack V. Lewis, 15 Wall. 643. ^ Grant o. Kline, 115 Pa. St. 618; 9 Atl. Rep. 150; 7 Cent. Rep. 626. 364 DESIGNATION OJF BENEFICIAET. § 249 they were not. The company could have defended upon this ground, but it did not. It paid the money over to Kline without question. This brings us to the main ques- tion, was the amount of insurance so disproportioned to Kline's interest in the life of Grant as to make this a wagering policy? TVe approach this question with caution, the more so that this court has not yet laid down a rule upon this subject. That we shall be compelled some day to do so is possible. We have said that the sum insured must not he disproportioned to the interest the holder of the policy has in the life insured. To take out a policy of $5,000 to secure a debt of five dollars would be such a palpable wager that no court would hesitate to declare it so as a matter of law. Care must be taken, also, that a debt shall not be col- lusively contracted for the mere purpose of creating an in- surable interest. Mr. Dickens, in his inimitable ' Pickwick Papers,' has shown how a debt may be created for the purpose of lodging the debtor in prison by collusion with the creditor. Speaking for myself, it may be that a policy 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 premiums, with interest thereon, during the expectancy of life as shown by the Carlisle tables. This view, however, has never yet been adopted by this court in any adjudicated case ; nor do we feel compelled to define the disproportion now in view of the particular facts of the •case in hand. We do not regard it as either immoral or wagering for Kline to attempt to secure the sums he had already fruitlessly paid in premiums on Grant's life; and if Grant had no objection thereto, and assisted him therein, I •do not see that any one could object to this but the company. Again, we have the declarations of Grant that he owed Kline a considerable sum of money, — the precise amount not stated; that Kline had aided him in various ways; had never refused him a favor, etc. In view of their connection 365 § 249 . DESIGNATION OF BENEFICIARY. by marriage, and of their admitted relations, it ia at least probable that Kline had aided him at many times and in various ways pecuniarily that are not represented by any evidences of debt. And, if the sum insured was regarded by Grant as a reasonable amount to indemnify Kline, with what grace can Grant's administrators come in and allege that it was not? They have no possible equity. Grant never paid one dollar of the premiums ; and if they are allowed now to recover, it is not by virtue of any equity,, but by force of an inexorable rule of public policy which treats it as a wagering policy, an^l declares the policy-holder a trustee for the person insured as to the entire proceeds, save only the money actually loaned with the premiums paid. Assuming, then, that Kline might, with Grant's consent and as against his administrators, lawfully seek to indemnify himself for the premiums paid and lost, we have the sum of $743.56 as the amount which Eline was out of pocket. We do not know what Grant's expectation of life was when the policy was taken out, and there is nothing before us upon which we could base any reliable opinion. But it appears he was sixty-five years of age and was an unusually good risk. While we do not know what the amount of the annual premium was, we do know that it must have been a considerable sum on $3,000 for a man of sixty-five years; and, with the annual interest it would roll up rapidly. That Grant died within a year is not to the purpose ; he might have lived long enough for the debt and premiums at compound interest to have ex- ceeded the amount of the policy. Surely, in such case, we cannot say, as a matter of law, that the disproportion was so great as to make it a wagering policy." In another case in the same court,^ where A., an old woman, was living with her daughter, and B., the father of her son-in-law, with whom the latter lived, had A.'s life insured, his only 1 BatdorfE Exr. v. Fehler, 8 Cent. Sep. 230; 9 Atl. Eep. 468. 366 DESIGNATION OF BENEFICIAET. § 250 interest being, as stated in the application, that he had "kept her a certain length of time and promises to keep her as long as she lives." Upon the death of A., BJ col- lected the amount of the policies and was sued by A.'s ex- ecutors for the money so collected, it was held that, as a matter of law, the insurance could not be held to be specu- lative.^ Where a debtor, at the solicitation of his creditor, to whom he owed $600, effected an insurance of $2,000 on his life for the benefit of his creditor, the latter being designated in the policy as the beneficiary ; and agreeing to pay the expense of effecting the insurance and keeping it up, with a condition that the debtor might at any time pay the debt and reimburse the creditor, and thereby become entitled to an assignment of the policy. After the death of the assured and payment of the amount named in the policy to the beneficiary, it was held ^ that the administrator of the deceased could not maintain an action against the beneficiary to recover the excess over the debt and amount of premiums paid. § 250. The Same Subject: Relatives: Creditors. — ^Al- though positive in its denunciation of wager policies, the Supreme Court of the United States has been liberal in its views concerning the insurable interest of relatives. In a leading case* it said: "The natural affection in cases of this kind is considered as more powerful — as operating more efficaciously — to protect the life of the assured than any other consideration. But in all cases there must be a reasonable ground, founded upon the relations of the parties to each other, either pecuniary, or of blood or affinity, to expect some benefit or advantage from the continuance of the life of the a-sured. Otherwise the contract is a mere ' Fitzgerald v. Hartford L. & A. Ins. Co. (Conn.), 13 Atl. Eep. 673; Fitzpatrick v. same, 6 N. Eng. Rep. 180. a Amick v. Butler, 111 Ind. 678 ; 9 West. Rep. 842 ; 12 U. East. Rep. 518. » Wamo<* V. Davis, 104 U. S. 779. 367 •§ 250 DESIGNATION OF BENEFICIARY. wager, by which the party taking the policy is directly in- terested in the early death of the assured." The same Elsey V. Odd-fellows' Mut. Relief Assn., 142 Mass. 224. " Continental Life Ins. Co. v. Volger, 89 Ind. 672. 24 369 § 250 DESIGNATION OF BENEFICIAKT. surable interest in the life of another person must be a di- rect and pecuniary interest, and that a person has not such an interest in the life of his wife or child simply in th& character of a husband or parent.^ In the same State it has been held that an uncle has no insurable interest in the life of a nephew; ^ and the Supreme Court of Pennsylvania has said ' that a nephew has no insurable interest in the life of his aunt. A stepson has no insurable interest in his step- father' s father ; * nor has a son-in-law in the life of his mother- in-law. * The Supreme Court of Connecticut has held that the providing by a relative of a home and proper care for life is sufficient consideration for the assignment by a laboring woman, living apart from her husband and childless, of her life insurance policy if the transaction was in good faith and not a wager.' A creditor has an insurable interest in the life of his debtor ; ' and can insure the life of the debtor without his consent ; * but such interest is limited to the amount of the debt.' The debt to give an insurable inter- est must be valid. The holder of a note given for money 1 Charter Oak Life Ins. Co. v. Brant, 47 Mo. 419; Gambs v. Covenant Mut. Life-Ins. Co., 50 Mo. 44. ^ Singleton v. St. Lonis, etc., Life Ins. Co., 66 Mo. 63; 27 Am. Eep. 321. » Appeal of Corson, 113 Pa. St. 438; 6 Atl. Eep. 213; 4 Cent. Hep. S07. * Gilbert v. Moose's Admr., 104 Pa. St. 74. " Bombach v. Piedmont, etc., Ins. Co., 35 La. Ann. 233; Stoner v. Line, 16 W.N. C. 187. " Fitzgerald v. Hartford L. & A. Ins. Co., 13 Atl. Eep. 673; «. c. nomen Fitzpatrick as plfE., 6 N. Eng. Eep. 180. * Sue. of Hearing, 26 La. Ann. 326. ' Eawls V. American Ins. Co., 27 N. Y. 282; Mowry v. Insurance Co., 9 E. I. 346; Cnnningham v. Smith's Exrs., 70 Pa. St. 450; Conn. Mut. L. Ins. Co. V. Schaefer, 94 U. S. 457; Cammack v. Lewis, 15 Wall. 643. ' Cammack v. Lewis, supra; Warnock v. Davis, 104 U. S. 779; Diys- dale V. Piggott, etc., 22 Beav. 238; Von Lindenau ». Desborough, 3 Car. & P. 353; 8 Bam. & C. 586; Euth v. Katterman, 112 Pa. St. 261; Appeal of Corson, 113 Pa. St. 438; 6 Atl. Eep. 213; 4 Cent. Eep. 307; Siegrist Admr. v. Schmoltz, 113Fa.'St. 326; 6Atl.Rep. 47; 5Cent. Eep. 230; ante, §2i8; post, § 397. 370 DESIGNATION OF BENEFICIARY. § 250 won at play has no insurable interest in the debtor's life; * nor does a mere moral claim confer insurable interest ; * but the fact that a debt is barred by the statute of limitations does not deprive a creditor of insurable interest ; ^ nor does the fact that the debtor is an infant.* A partner has an in- surable interest in the life of a partner ; ° and a bondsman in the life of the person on whose bond he is a surety ; " and joint obligors in a bond in each other's lives; ' and a surety on a note in the life of the principal,* and a tenant has an insur- able interest in the landlord's life when the latter is himself only a tenant for life, because the term depends upon the con- tinuance of the life.' Where a member of a mining associ- ation employs a substitute to represent him and work in his stead in the mines, he has an insurable interest in the life of his substitute . '" A master has an insiu-able interest in the life of his servant," and a servant in the life of his master. ^^ If the person effecting the insurance has no insurable interest in the life of the insured, he cannot recover more than the amount of premiums paid with interest, but if he collects the whole amount of the insurance he must pay over to the per- sonal representatives of the insured the excess over the » Dwyder ». Edie, Aug. on Ins., § 296; 2 Parke Ins. (7th ed.) 639. ' Guardian M. L. Ins. Co. v. Hogan, 80 ni. 35. » Rawls V. American L. Ins. Co., 27 N. Y. 282. • Rivers v. Gregg, 5 Rich.Eq. 274. » MorreU v. Trenton, etc., L. Ins. Co., 10 Cnsh. 282; 57 Am. Dec. 92 and note; Valton v. National F. Ins. Co., 22 Barb. 9; 20 N. Y. 32; Conn. M. L. Ins. Co. V. Lnchs, 108 TJ. S. 498; Hoyt v. N. Y. L. Ins. Co., 3 Bosw> 440; Bevin v. Conn. M. L. Ins. Co., 23 Conn. 244; post, § 397. ' • Scott V. Dickson, 108 Pa. St. 6. ' Brandford v. Sannders, 25 W. R. 650. « Lea D. Hinton, 5 De G. M. & G. 823. • Sides V. Knickerbocker L. Ins. Co., 16 Fed. Rep. 650. 1° Trenton, etc., Ins. Co. v. Johnson, 24 N. J. L. 576. 1 Miller c. Eagle Ins. Co., 2 E. D. Smith, 268; Summers v. V. S., etc.^ TrastCo., 13 La. Ann. 504; Woodfln v. Ashvllle, etc., Ins. Co., 6 Jones L. 558. " Hebden v. West, 3 Best S> Sm. 579; 32 L. J. Q. B. 85; 9 Jur. (n. s.> 747; 7 L. T. 854; 11 W. R. 422. 371 ■§ 251 DESIGNATION OF BENEFICIARY. amount of the premiums and interest.^ No action can be maintained on a policy of life insurance, issued to one not having an insurable interest in the life insured, against the company issuing it, by the personal representatives of the person whose life was insured, for there is no privity of contract between them ; nor is the company bound by a notice from such personal representatives forbidding it to pay over the amount of such insurance to the payee named in the policy.^ § 251. General Bale. — It is seen from the preceding citations that the authorities are not altogether in harmony and it would be difficult, if not impossible, to lay down a general rule that would apply to all cases. It can with safety be said, however, that in all cases of insurance by one person upon the life of another some pecuniary interest or advantage, to be derived or received from the continu- ance of the life insured by the person procuring or effect- ing such insurance, must exist in order to relieve the con- tract from the stigma of being a wager policy and against public policy. A careful examination of the cases will show that wherever the point has been raised the courts have considered whether or not the person procuring the policy was interested pecuniarily to an appreciable extent in the life insured. Perhaps a slighter interest will support a policy on the life of a relative than in other cases, but the interest must exist in some form. Where a wife in- sures the life of a husband or the husband that of the wife, it is clear that there is a pecuniary interest of a decided character, and so where a parent insures the life of a child, ior there is the expectation of support when age shall im- ^ Wamock v. Davis, 104 U. S. 775; Gilbert v. Moose, 104 Pa. St. 74; Bnth V. Katterman, 112 Fa. St. 251; Slegrist's Admr. v. Schmoltz, 113 Pa. St. 326; post, §§ 802, 303, 397. * Bombergerv. United Brethren, etc., Sec. (Pa.), 18 W. K. C 469; 4 Cent. Rep. 694; 6 Atl. Sep. 41; post, §§ 302, 397 et seq. 372 DESIGNATION OF BENEFICIARY. § 263 pair the abilities of the former. " The interest required,' says a leading case,^ " need not be such as to constitute the basis of any direct claim in favor of the plaintiff upon the party whose life is insured ; it is sufficient if an indirect advantage may result to the plaintiff from his life." § 252. The Doctrine of Insurable Interest Applied to Contracts of Benefit Societies. — Many of the cases, involving the question of insurable interest, cited in the four preceding sections, are those in which benefit societies were parties. As a rule, however, it is only when the right of designation of beneficiary is unrestricted, can the point of insurable interest be raised.^ Even then, as the member must be prima facie considered as the party effecting the insurance and free to choose whom he pleases as the recipient of his bounty, he can designate whomsoever he likes. Clearly, however, the contract must not be, in fact, a cover for a wagering transaction and if the creditor, or a person having no insurable interest, should himself pay the entrance fee and assessments and be the mover in the mat- ter, the certificate would be void and the beneficiary could not recover. If the beneficiaries are, by the charter, lim- ited to certain classes, as family, relatives, etc., and the member designate some one not of such classes, the desig- nation is void, and, if the money be paid to such beneficiary, he holds it as trustee for 'ihe persons entitled to receive, under the laws of the society, in default of a designation.^ § 253. Policy or Designation of Beneficiary Valid In Its Inception Remains so. — The general rule undoubtedly is that a policy of life insurance, or a designation of bene- ficiary, valid in its inception, remains so, although the in- i Trenton, etc., Ins. Co. v. Johnson, 24 N. J. L. 586. * Freeman v. National Benefit Soc, 42 Hun, 252. » Am. I/egion of Honor v. Perry, 140 Mass. 580; Daniels v. Pratt, 143 Mass. 216; ante, §241. 373 § 254 DESIGNATION OF BENEFICIARY. sarable interest, or relationship of the beneficiary, has ceased, unless it is otherwise stipulated in the contract.^ Where, however, the beneficiaries of members of benefit so- cieties were, by statute, restricted to the family, or depend- ents, or relatives of their members, and a member of one of such societies designated his wife, from whom he afterwards was divorced, it was held ^ that she lost her rights under the designation in consequence of such divorce. This case is apparently against authority, but the reason given is, that under the statute, the relationship or status must exist at the time of the maturity of the contract. § 254. Liawfulness of Designation of Beneficiary a Question of Construction. — Ftom the preceding sections it appears that the question, who is entitled to be the bene- ficiary of a member of a benefit society, is one of con- struction of the laws of such society, and the terms used in them. Hardly any two of such societies, as far as the cases show, use precisely the same language, yet in all certain generic terms are used. The benefits are variously required to be made payable to : " the widow and children of de- ceased member; "*" widow, orphan, heir, assignee or leg- atee ; " * " families or assigns ; ' " " family or dependents ; " • " widow, orphan children and other persons dependent on ' Connecticut Mut. L. Ins. Co. v. Schaefer, 94 U. S. 457; McKeei>. Phoenix M. L. Ins. Co., 28 Mo. 383; 75 Am. Dec. 129; Clark v. Allen, 11 K. I. 439; Dalby v. India & London Ass. Co., 15 C. B. 365; Campbell e. N. Eng. Mut. L. Ins. Co., 98 Mass. 381; Provident L. Ins. Co. v. Baum, 29 Ind. 236. .Ante, §248; posJ, § 397. 2 Tyler o. Odd-fellows' Mut. Belief Assn. 145 Mass. 134; 5K. Eng. Eep. 191; 13 N. East. Rep. 360. s Duvall V. Goodson, 79 Ky. 224; Dietrich v. Madison Relief Assn., 45 Wis. 79; Kentucky Masonic M. L. I. Co. v. Miller's Admr., 13 Bush, 489. * Masonic Mut. R. Assn. v. McAuley, 2 Mackey, 70. 6 Massey v. Mut. B. A., 102 N. T. 523. ' knights of Honor v. Nairn, 60 Mich. 44; 26 N. W. Rep. 826. 374 DESIGNATION OF BENEFICIAKY. § 254 tim; "^ «' person or persons last named by deceased and ■entered, by his order, on the will book of the company; " ^ •'" widows, orphans, heirs or devisees: " * " legal represen- tatives ; " * " widows, orphans, heirs and devisees; " * "to his family or as he may direct ; " * «« families and heirs; " » •*• to his family or those dependent on him ; " * «« to family, •orphans or dependents;"' "families or relatives ;" i" *' families of deceased members or their heirs. " ^^ By the laws of some of the leading benefit societies the benefits are variously payable to:' "family or those dependent on him ; " *^ " members of his family, or some one related to him hy blood or who shall be dependent on him ; " ^* " to the fam- ily , orphans or dependents ; " " " those related to or depend- -ent upon him ; provided member can name betrothed, subor- Addison v. N. E. C. Travelers' Assn., Ui Mass. 591; 4 N. Eng. Eep. •639 ; 12 N. East. Eep. 407. * Sup. Counc. Catholic Ben. Assn. v. Priest, 4G Mich. 429. ' Covenant M. Benefit Assn. v. Sears, 114 HI. 108. * Expressmen's Aid Soc. v. Lewis, 9 Mo. App. 412. " Worley v. S. W. Masonic Aid Assn., 10 Fed. Rep. 227. * Gentry v. Sup. Lodge, etc., 23 Fed. Rep. 718; Mitchell v. Grand Xodge, etc., 70 la. 360; 30 N. W. Rep. 865. ' National Mut., etc., Assn. v. Gonser, 43 Ohio St. 1. - Ballon r. Gile,etc., 50 Wis. 614. * Am. Legion of Honor v. Perry, 140 Mass. 580. " Presbyterian Assur. Fund v. Allen, 106 Ind. 593; Van Bibber's Admr. v. Van Bibber, 82 Ky. 347. " Elsey V. Odd-fellows', etc., 142 Mass. 224. >' Royal Arcanum. " Ancient Order United Workmen. ^* American Legion of Honor. , ^ Knights of Pythias. M Knights of Honor. 375 § 255 DESIGNATION OF BENEFICIARY. any one not having insurable interest in his life." ^ It be- comes important, then, to know who are included in these generic terms, " families," " orphans," '• children," " heirs," "legatees," " relatives," "legal representatives,"" " devisees" and " dependents." ' § 255. Rules of Gonstniction in Cases of Designation of Beneficiary. — The principles governing the construction of the charters, laws and certificates of benefit societies, as- well as of the various statutes relating to them, are of a. manifold nature and analogous to the general rules of con- struction of statutes, contracts and. wills, for the subject- matter partakes of the characteristics of all. The first es- sential of the designation of beneficiary is that it conform tO' the requirements of the statute under which the society ex- ists, or at least violate no provisions of any statute; the des- ignation must also be in conformity with the terms of the^ contract of the membership. If the meaning of the mem- ber is not clear, then the inquiry is to ascertain it. The same general rules of construction apply to the designation of beneficiaries that apply to all written documents, but the- interpretation of some generic terms must be separately discussed. The primary rule is that the intent of the leg- islature, parties to a contract or designator must be first as- certained and then carried into effect;^ and this intention must be judged of exclusively by the words of the in- strument,,if unambiguous, as applied to the subject-matter and the surrounding circumstances.^ The whole of the statute, law, or designatory writing, must be looked at and considered and words are supposed, unless the contrary be- shown, to have been used in their ordinary every-day sense and with the meaning a long line of judicial decisions- 1 Ho. Masonic Mutual Ben. Assn. > Bishop on Con., § 380; 2 Pars, on Con., p. * 494: 1 Redf. on WiUSy p. • 483 and vol. 2, p. • 20. ' 1 Eedf. on Wills, p. *433; Bishop on Con., § 381. 376 DESIGNATION OF BENEFICIARY. § 255- has given them.^ It is not necessary to here refer in de- tail to the other numerous rules of construction that have been laid down by a long series of judicial decisions, col- lected and digested by learned and accurate commentators ; the text-books upon contracts, statutes, wills and kindred subjects must be consulted by those who wish to search deeper into the law governing particular cases. The courts substantially agree that the rules and regulations of benefit societies are to be construed liberally in order to effect the- benevolent objects of their organization.^ And the court will, if possible, so construe the designation as to bring it within the power given by the statutes and sustain its le- gality.^ We can have a wider range of authority in search- ing for precedents for construing the meaning of the language used in designations of beneficiary, as well as in the laws of these societies and statutes relating to them, because of the analosries that have been found between such desis:- nations and laws, so far as disposition of property is con- cerned, and wills. The Supreme Com-t of Michigan, for example, has said:* "The same rules of construction should be applied to dispositions of property created by those mutual benefit associations as are applied to bequests » Bishop on Con., § 377; 1 Eedf . on Wills, pp. * 434 and 438, and vol. 2, p. * 19. ' Supreme Lodge K. of P. v. Schmidt, 98 Ind. 381; Ballon ti. Gile, 50 Wis. 614; Erdmann v. Mntnal Ins. Co., 44 Wis. 376; Maneely v. Knights oi Birmingham, 115 Pa. St. 306; 9 Atl. Eep. 41; 7 Cent. Eep. 633; Sup. Lodge K. of H. v. Martin, (Pa.), 12 Ins. L. J. 628 ; 13 W. N. C. 160 ; American Legion of Honor v. Perry. 140 Mass. 580; Gundlach v. Germania, etc., 4 Hnn, 339; Expressman's Mat. Aid Assn. v. Lewis, 9 Mo. App. 412; Bie- trich et al. v. Madison Relief, etc., 45 Wis. 79 ; Massey et al. v. Mntnal Re- lief Assn., 102 N. Y. 523; Van Bibber's Admr. v. Van Bibber, 82 Ky. 347; Dnvall V. Goodson, 79 Ky. 224; Masonic Mut. Relief Assn. v. Mc- Anley, 2 Mackey, 70; Whitehurst Admr. v, Whitehurst (Va.), 1 S. B- Eep. 801. ' Elsey o. Odd-fellows' Mat. Belief Assn., 142 Mass. 224; Am. Le- gion of Honor v. Perry, 140 Mass. 580; 2 Pars, on Con., p. ' 506. < Union Mntnal Aid Assn. v. Montgomery, 38 N. W. Eep. 688; 14 West. Rep. 877. 377 •§ 256 DESIGNATION OF BENEriCIABT. by will." And Chief Justice Cofer, of the Kentucky -Court of Appeals,, has said :* "A life policy for the benefit •of the family of the person procuring, though not a testa- ment, is in the nature of a testament, and in construing it the courts should treat it, as far as possible as a will, as in so doing they wiU more nearly approximate the intention of the persons, the destination of whose bounty is involved in such cases." In other cases this analogy has been men- tioned.* It is a settled principle in wills that they take effect upon the death of the testator, and are treated as speaking -from that time.* Following the analogies above noticed, it ^follows that the designation of beneficiaries by the members •of mutual benefit societies takes effect only upon the death of such members and the benefit certificate confers upon the beneficiary only an inchoate, contingent expectation, liable to be diverted either by the death of the beneficiary before that of the member, or by a revocation of the ap- pointment and a naming of another beneficiary. Upon the death of the member then the benefit certificate takes ef- fect, so far as to vest in the beneficiary an absolute right to the benefit money. * § 256. Family. — In the specification of the persons who may be designated as beneficiaries, the term which most fre- ■quently occurs in the charters of benefit societies, and also in the statutes authorizing their existence and doing of cer- tain acts, is " family." The word has been frequently the subject of judicial discussion in two classes of cases, those involving homestead rights and those relating to the con- 1 Duvall V. Goodeon, 79 Ky. 224. » Continental L. Ins. Co. v. Palmer, 42 Conn. 65; Thomas v. Leake, 67 Tex. 469; 3 S. W. Rep. 703; National American Assn. «. Kirgin, 28 Mo. App. 80. » 2 Bedf. on Wills, 10-12; 2 Jarm. on Wills, 406; Shotts v. Poe, 47 Md. 513; Davidson c. Dallas, 14 Ves. 576. * Thomas ». Leake, 67 Tex. 469; 3 S. W. Eep. 703; Union M. Aid Assn. V. Montgomery (Mich.), 38 N. W. Rep. 588; 14 WeSt. Rep. 877. 37» DESIGNATION OF BENEFICIAST. § 256 struction of wills. Very different results follow as the one or the other class of decisions is followed, for in homestead laws the intent of the legislature is evidently to protect a person who has others, who are dependent upon his labors, -abiding with him under the same roof. On the other hand, in construing wills, the object is to ascertain the intention of the testator. The latter body of cases favor a more liberal construction than the former. The definition given by Bouvier is comprehensive^ and is this: " Father, mother and children. All the individuals who live under the authority of another, including the servants of the family. All the relations who descend from a common ancestor, or who spring from a common root." We cannot understand that those persons who are hired to assist in household work jure included among those termed servants in this definition. In discussing this word as affecting ri^ts of homestead, and .after a review of the authorities, a learned writer says: * *' The family relation is obviously a relation of status, and not of contract merely. An assemblage of persons held 1»gether by a mere contract, other than the marriage con- tract, although such a contract may raise a duty of support ■on the part of one member, and create a state of depend- ence on the part of the others, is not a family. Of such a nature are the ordinary contracts of service now in vogue in the United States. And, hence, the relation of master and servant, or more properly speaking, of employer and and employe, as it ordinarily exists in this country, does not constitute a family. ' There is absent that peculiar feature, which can be better understood than described, which distinguishes the family even from those who may «lwell within the limits of the same curtilage.' And, there- fore, a single man, who has no other persons living with itim than servants and employes is not the head of a fam- ' Law Die Ht. Family. ^ Thompson on Homesteads, § 47. 379 f 256 DESIGNATION OF BENEFICIARY. ily within the meaning of the statutes creating homestead exemptions." In questions involving both the constructiott of wills and homestead rights the courts are inclined to adopt liberal views. In testing the right of a debtor to be con- sidered the " head of a family" certain tests are applied which are easily understood. The first of these is whether the law imposed upon the head of the associated persons the duty of supporting them, which would be a simple and. uniform test, but this test would not apply to all cases,, consequently there is the further inquiry whether a moral duty to support existed. There is the test of condition of dependence and also those of common residence and good faith. In applying these tests and in construing who are • included in the family of any person, the courts will be lib- eral.^ Accordingly it has been held that indigent mother and sisters who live with a man and are supported by him are members of his family ; ' and a widowed daughter and her minor child residing with a father who was a widower are members of his family ; ^ also dependent mother and dependent minor brothers and sisters residing with an un- married man are members of his family ; * so also minor brothers and sisters residing with an unmarried man ; * also- a widowed sister supported by a brother, whether she has or has not dependent children.' Children of a wife by a former husband are members of the husband's family ' and adopted children.* The Supreme Court of Massachusetts- has held^ that, under the statute of that State, limiting 1 Thompson on Homesteads, § 4. • Marsh v. Lazenby, 41 6a. 163. » BlackwellD.Broughton, 56Ga. 390; Cox». Stafford, U How. Pr. 621. * Connaughton v. Sands, 32 Wis. 387. ' Greenwood v. Maddox, 27 Ark. 658. « Wade V. Jones, 20 Mo. 76; Bailey v. Cummings, cited Thompson on Homesteads, § 69. ' Allen V. Manasse, 4 Ala. 554; Sallee v. Waters, 17 AK,. 488. ' Thompson on Homesteads, § 48. » Elsey V. Odd-fellows' Mut. R. Ass., 142 Mass. 224. 380 DESIGNATION OF BENEFICIARY. § 256 beneficiaries to the widow, orphans or dependents of de- ceased members, the mother, who was living with her hus- band away from a son was not a " dependent " upon him, nor strictly speaking a member of the son's family in the sense of being dependent. In a Michigan case^ the Su- preme Court of that State said: " Now this word 'family,' contained in the statute, is an expression of great flexibil- ity. 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 wffe and children, or blood relatives, or any group constituting a distinct domestic or social body." The court therefore held that, where the insured , was an old man and his beneficiary a young woman, who was not related to him, but who had lived for many years with him in the same household and was treated by him as a daughter, the term, family, as used in the statute covered the case and included her. In construing wills the word family is very comprehensire and, in its ordinary sense, comprises the same persons as "kindred" or "rela- tions."^ In some of the older cases bequests to one's family have been held void for uncertainty.* It was said •by Eomillo, M. E.,* that the primary meaning of fam- ily is children, and that there must be some circumstances arising on the will itself, or from the situation of the parties to prevent that construction.* Jessel, M. E., also said * that the primary meaning was children. And so in this country ;'' though ordinarily it includes the wif e .* In the English cases, ■collected in the last edition of Jarman on Wills,' various 1 Carmichael v. TS. W. Mut. Beu. Assn., 61 Mich. 494. » 2 WUliams on Exrs. 1213. ' 2 Jar. on Wills, chap. 29. * In re Terry's Will, 19 Beav. 580. ' Snow V. Teed, 9 Eq. Cas. 622. * Pigg V. Clarke, 3 Ch. D. 674. ' Spencer v. Spencer, 11 Paige, 159. > Bowditch «. Andrew, 8 Allen, 339 ; Bradlee v. Andrews, 137 Mass. 50. * Vol. II, p, 622 et seq. 381 § -257 DESIGNATION OF BENEFICIARY. meanings have been given to the word according to the sup- posed intent of the testator, as heir, or children, relations, descendants, or wife. As said by Vice Chancellor Kind- ersley in Green v. Marsden,* " family " is not a technical word, but is of flexible meaning. It has been held even Uy mean ancestors, and not infrequently next of kin, but often the parents have been excluded.' Judge Redfield, in his work on wills, says: ' " There has been considerable con- troversy in the English courts in regard to the proper con- struction of bequests to the family of the testator, or of others. The state of things is so different in England, as- it regards families, from what it is here, that the ordinary import of the word can scarcely be regarded the same. And the fact that so many cases, where the meaning of this term came in question, have arisen in the English courts upon the construction of wills, and so comparatively few in this country, leads us to the conjecture, that the word,, family, will but seldom occur in a will, in this country, where there will not be something, either in other portions of the will or in the surrounding circumstances, which may lead to a reasonable ground of inferring, with probable certainty, the sense in which it was used by the testator." When used in the statutes in connection with other words, as where it says, " the families, widows, orphans, or other de- pendents of the deceased members," * it may include those not embraced in any of the other classes ° and, therefore, was probably used in the larger sense of kindred or relations.^ §^57. Children. — Where the word "children," as well as all other descriptive names of classes or relations, » 1 Drew. 651. 2 2 Eedf . on Wills, *78. » 2 Kedf . on Wills, 71. " Rev. Stat, of Mo. 1879, § 972. » Grand Lodge v. Eisner, 26 Mo. App. 116. • Caxmichael v. N. W. Mut. Ben. Assn., 51 Mich. 494. 382 DESIGNATION OF BEKEFICIAKT. § 257 is nsed it most always, when that can be done, be onder- stood in its primary and ordinary signification,^ and where the word has received a larger and more extended construc- tion it has been based npon a supposed intention of a testa- tor, grantor, or law-making power, to so extend it.' When there are those answering to the description, only legiti- * mate children are included onder the term,^ but the authori- ties seem to agree that the question is one of intent, and if the term " children " is used by a testator who leaves one legitimate and one ille^timate child, both will generally take;* so, if an unmarried man leaves children who have been recognized by him, they will take.* Step-children will take if such can be supposed to have been intended. Also children by different marriages,* and posthumous difldren,' and adopted children," but the right of the latter depends upon whether the child was legally adopted and whether there was an intent that it should take. In a case where a policy of life insurance on the life of a husband was payable " to my wife M. and children," the court held that a child of the insured by a former wife was included.' and it has been held that •' children" means children of the assured by several wives, but not children of a wife by another husband.'" Ordinarily, the word, child, does not include a grandchild,'* but the general rule is, that whether » 2 Bedf. on Wills, »15; Bedford's Appeal, 40 Pa. St 18. ' 2 Bedf. on Wills, *16 and note; Wi^ram on Extrinsic Evidence, 42. ' Van Voorbis v. Brintnall, 23 Hon, 260. * 2 Bedf. on WiUs, *24 and cases cited in note. » 2Bedf. on Wills, *25. • 2 Bedf. on Wills, *29; Jackman v. XeLson (Mass.), 17 N. E. Bep. 529 j 6 H. Eng. B. 615. ' 4 Kent Comm. 412; 2 Wasbb. on Beal Prop. 654; 2 Bedf. on Wills, •10. • Barnes v. Ahea, 25 Ind. 222. * MeDermott e. Centennial M. I.. Ins. Assn., 24 Mo. App. 73; see also Jackman v. Nelson, mpra. > Koebler e. Centennial M. L. Ins. Co., 66 la. 325. n Cbnrcbm v. Cbnrcbill, 2 Met. (Ky.) 469; Hngbes v. Hnghes, 12 B. 383 f 257 DESIGNATION OF BENEFICIAKY. grandchildren will take under the term children, depends entirely upon the construction of the intent of the party using the word. A leading English case ^ says: *' Children may mean grandchildren when there can be no other con- struction, but not otherwise." The late American cases are apparently conflicting, but seem to agree that the ques- tion is one of intent, depending upon the special circum- « stances of each case.^ The Court of Appeals of Kentucky has held,' that under the circumstances of that case any other construction would defeat the intention of the maker of the instrument, and that, there at least, the words, child and grandchild, were synonymous. In a Rhode Island case,* the Supreme Court held the opposite. In a case where the policy was payable to the wife of the assured, if she sur- Trived him, and if not, then to his " children," it was held,* that grandchildren were not included. In another case,' "where the policy was payable to the wife of assured " and ■children," the same court held that parol evidence was not admissible to show that a grandchild was intended to be included. The word, in a statute, has been construed to embrace grandchildren.' Obviously, rather than admit a construction that would result in intestacy, children would be held to mean descendants ; * but there must be special And satisfactory reasons to justify a departure from the primary import of the word; 'the rule, however, is not Mon. 121; Carson v. Carson, 1 PhlU. Eq. 57; Kobinson c. Hardcastle, 2 Br. Ch. C. 344; In re Cashman, 3 Demarest (N. Y.), 243. 1 Reeves v. Brymer, 4 Ves. 692-698. » Castner's Appeal, 88 Pa. St. 478. » Duvall V. Goodson, 79 Ky. 224. * Winsor v. Odd-fellows' Assn., 13 R. I. 149. » Continental L. Ins. Co. v. Webb, 64 Ala. 688. ° Russell V. RusseU, 64 Ala. 500. ' Cutting V. Cutting, 6 Sawy. C. C. 396 ; Walton v. Cotton, 19 How. 355. * Royle V. Hamilton, 4 Ves. 437; BadcliSe r. Buckley, 10 Ves. 195; Beebe v. Estabrook, 79 N. T. 246. * Jackson v. Staats, 11 Johns. 337; HalloweU«. Phipps, 2 Wbart. 376; . J'eit 0. Vanata, 21 N. J. Eq. 84; ScoU v. Guernsey, 48 N. Y. 106. 384 DESIGNATION OF BENEFICIARr. § 257 weneral.^ Often, in order to carry out a supposed inten- tion, children may mean issue generally.^ All the persons 'who come within the designation and are in existence at the time the bequest or designation takes effect, will take un- less the language used clearly conveys a different import.' A benefit certificate takes effect, so far as to vest in the Sbeneficiaries an absolute right to the benefit money, at the 'death of the party to whom it is issued, and hence the isame rules should hold to them which prevails as to wills and policies of life insurance. Where the certificate was issued payable to the " children" of the applicant with- out naming them, the term does .not mean certain jiamed children then in existence, but those together with such as may thereafter be born to the member.* They will take an equal share per capita, but if there are not words indicating a purpose to have the bequest or ben- Thompson v. Lndington, 104 Mass. 193. » 2 Bedf. on Wills, *22, 23; Browitt «. Eodman, 87 N. T. 42; •ChnrchiU v. Churchill, 2 Mete. (Ky.) 466; Bond's Appeal, 31 Conn. 183; OoUins V. Hoxie, 9 Paige, 81; Hone v. Van Schaick, 3 N. T. 538; Dicken- son «. Lee, 4 Watts, 82. But see Hopson v. Commonwealth, 7 Bush, 644. » 2 Redl. on WUls, § 2, chap. I., part II.; Chesmar v. Backen, 37 X. J. Eq. 415; Campbell v. Bawdon, 18 N. Y. 412; Felix v. Grand Lodge, *tc., 31 Kan. 81. • Thomas v. Leake, 67 Tex. 469; 3 S. W. Eep. 703; Union Hut. Aid Arhti. b. Montgomery (Mich.), 38 N. W. Rep. 588; 14 West. Rep. 877. • HaUan v. Gardner, 5 Ky. L. Eep. 857; Covenant Mut. Ben. Assn. v. tHoffman, 110 m. 603; Malone v. Majors, 8 Humph. 577; 2 Redf. on Wills, *34; Harris' Estate, 74 Pa. St. 452; Kean v. Roe, 2 Harr. (Del.) 103? Morgan t). Pettitt, 3 Demarest (N. T.), 61; CampbeU v. Wiggins, nice (S. C.) Ch. 10; Lemacks r. Glover, 1 Rich. Eq. 160. • Oglesby Coal Co. v. Pasco, 79 111. 164. n.) 385 § 259 DESIGNATION OF BENEFICIAKT. § 258. Orphans. — In the statutes of Massachusetts, Missouri and other States relative to benefit associations^ and in the charters of many societies, the benefits are ex- pressed to be, among other classes, for "orphans" of deceased members. An orphan is defined to be a minor or infant child, who has lost both of his or her parents. Sometimes the term is applied to a person who has lost only one of his or her parents.^ Webster's dictionary de- fines the noun orphan substantially as Bouvier, but the adjective as " bereaved of parents." The English author- ities usually cited,^ and at least one American case,' substan- tially support this definition. In a Pennsylvania case involving the construction of the word in Girard's wilL^the subject received exhaustive discussion, the conclusion being that a fatherless child was an orphan as well as a child who had lost both parents. The most reasonable view of tUfr subject is that in the use of the word in connection with benefit societies, the orphans of a member are his children for, although a member's children cannot be orphans so long as he lives, his orphans must certainly be his children. But in a Missouri case* it was held, from consideration of the rules of the association, that in that case, the true con- struction demanded that the term, " orphan children," b& taken as intended to mean minor children and not father- less adults. § 259. Widow. — By " widow " we are undoubtedly to understand an unmarried woman whose husband is dead,* and that the word is used in its ordinary popular sense. 1 Bouvier's Law Die, tit. " Orphan." « 2 Salk. 426; 2 Bl. Com. 619; 4 Bnms Ecc. Law, 443-444; 7 Vin. Abr. 213 ; 1 McPherson on Inf. 64. " Heiss, Ext., etc., v. Mnrphey etal., 40 Wis. 276. * Soohan v. City of Philadelphia et al., 33 Pa. St. 9. * Hammerstein v. Parsons, 29 Mo. App. 509. * Bouvier's Law D., tit. Widow. 386 DESIGXATION OF BENEFICIARY. § 259 An interesting case was recently decided by the Supreme Court of Maine ^ where the facts were as follows: Bolton insured his life in two societies to a considerable amount payable to his widow ; he then living with a woman who for many years had passed as his wife. Upon his death the money passed to this supposed widow but, afterwards the true widow appeared and sued the pretender for this insurance money. The court decided in the claimant's favor holding that there could be but one widow of a man. Under this rule a divorced woman whose husband is dead is not his widow. In a New York case it was held ^ that the term wife after the name of a woman who was not the wife of the member will not invalidate the designation of her as his beneficiary. Nor does adultery affect the widow's right.' If a man designate as his beneficiary a woman with whom he is living as his wife the designation will be held good, although he may not in fact have been legally married to the woman, because if there be no violation of the laws of the society in the designation, the society by the issue of the certificate assents to such designation.* But, where the by-laws of the society designate the widow of a deceased member as the party to whom the benefit is to be paid, it has been held ' that in the absence of qualifying circumstances the lawful wife of the member is intended, although it is legally possible for such member to designate as his beneficiary a person living with him as his wife, though not legally married to him, and if such designation is assented to and becomes a part of the contract, the per- son 80 designated may, on the member's death, recover on the contract, though the burden of proof is on her clearly to establish such designation. But in such a case the proof 1 Bolton c. Bolton, 73 Me. 299. ' Dnrian v. Central Vereln, 7 Daly, 168. » Shamrock Ben. Soc. v. Drum, 1 Mo. App. 320. * Story o. Williamsburg Masonic, etc., Assn., 95 N. T. 474. s Scbnuok v. Independent Order, etc., 21 Jones & Sp. 181. 387 ■§ 260 DESIGNATION OF BENEFICIARY. must be clear, for courts will not encourage concubinage, and no right of a lawful wife or child will be permitted to be taken away except upon clear proof. In a case in Mis- souri ^ where the laws of the order designated the widow of the member as his beneficiary, the deceased had abandoned his wife in a foreign country and had lived in Missouri many years with a woman who was held o ut to be his wife and by whom he had reared a large family. The court held, on a contest between the lawful and the alleged widow, that the former was entitled to the benefit and the intention of the member in effecting the insurance and the good faith of the putative wife in considering herself his wife were immaterial facts. § 260. Heirs. — In construing the meaning of the word beirs the intent will also be considered and regarded, if pos- sible; ^ and if there is a plain demonstration that the word was used in any other than a strict legal sense a liberal inter- pretation will be given it.^ Accordingly it has been held to have been used in the sense of family,* and in the sense of children." The general current of authority is to the «ffect that when applied to the succession of personal estate the words mean next of kin and a husband or widow are ex- ■cluded.' There are numerous cases in opposition to this 1 Grand Lodge v. Eisner, 26 Mo. App. 108. 2 Tillman v. Davis et al., 95 N. Y. 17; s. c. 47 Am. Rep. 1; Ciriswell v. •Grumbling, 107 Pa. St. 408; Bradlee v. Andrews, 137 Mass. 50; Green- wood V. Murray, 28 Minn. 120; Addison v. N. E. C. Travelers' Assn. 144 Mass. 591; 12 N. East. Eep. 407; 4 New Eng. Kep. 639; Sweet «. Dut- i;on, 109 Mass. 591; De Beauvoir v. De Beauvoir, 3 H. L. Gas. 524. In re Eootes, I Drew & Sm. 228. ' Eivard u, Gisenhof, 35 Him, 247; Addison' ». K. E. C. Trav. Assn., 144 Mass. 591; 12 N. East. Bep. 407; 4 N. Eng. Rep. 639. * Bradlee v. Andrews, 137 Mass. 60; Rivard v. Glsenhof, 35 Hun 247; Criswelle. Grumbling, 107 Pa. St. 408; Browne. Harmon, 73 Ind. 412. * Morton v. Barrett, 22 Me. 257; Mace«, Cnshman, 45 Me. 250. « Hodge's Appeal, 8 W. N. 0. (Pa.), 209; Hascall v. Cox, 49 Mich. 388 DESIGNATION OF BENEFICIARY. § 260 view, which hold that by heirs those are meant who would take personal property under the statutes of distribution.^ In an niinoiscase the Supreme Court of that State,^ held that the designation " legal heirs " in a benefit certificate gave the money to the next of kin and excluded the widow. In a case in Missouri * " heirs or representatives " was held to mean next of kin, if the intent of the assured could be shown to be that the money was not to go to his executors or administrators to be administered as ordinary assets. The Supreme Court of' Massachusetts has held * that the word" heirs " was used in the by-laws of a benefit society " in its limited sense, to designate such persons as would be the legal heirs or distributees of the member at the time of his application or designation. This view is strentrth- ened by the fact that, in the fourth clause of the same sec- tion, the same words are used in this sense, it being provided that, ' if the designator leave no widow, or children, or assignee, then it shall be payable to his heirs.' In the case at bar, W., 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 435; Irwin's Appeal, 106 Pa. St. 176; 51 Am. Rep. 516; Tillmah v. Davis et aL, 95 N. T. 17; s. c. 47 Am. Bep.l; Wright v. Trustees, HofE. Ch. 202; Keteltas v. Keteltas, 72 N. Y. 312; Luce v. Dunham, 69 N. T. 36 ; Dodge's Appeal, 106 Pa. St. 216; s. c. 51 Am. Rep. 519; Blackman o. Wadsworth, 65 la. 80; Wilkins v. Ordway, 59 N. H. 378; s. c. 47 Am. Rep. 215; Gordon V. SmaU, 53 Md. 560. 1 Withy V. Mangles, 10 Clark & Fin. 216; Evans v. Salt, 6 Beav. 266; Jacobs V. Jacobs, 16 Beav. 557; Low v. Smith, 2 Jur. Pt. 1,344; Doody r. Higgins, 2 Kay & J. 729; Elmsley v. Yonng, 2 Myl. & K. 82; In re Porter's Will, 6 W. R. 187; Gittingsr. McDermott, 2 Myl. & K. 69; Eby's Appeal, 84 Pa. St. 241; Sweet v. Dutton, 109 Mass. 591; Welsh v. Crater, 32 N. J. Eq. 177; Freeman c. Knight, 2 Ired. Eq. 72; Alexander v. Wallace, 8 Lea, 569; Honghton r. Kendall, 7 Allen, 72. » Gauche. St. Louis M. L. I. Co., 88 lU. 251. * Loos V. John Hancock L. Ins. Co., 41 Mo. 538. * Elseyc. Odd-fellows, etc., 142 Mass. 224. 389 § 2(yOa DESIGNATION OF BENEFICIAET. his mother was not living with him, but was living with her husband in another town and county It was not sug- gested that she was dependent upon him. She was not one of those 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." In another case, however,^ the mother of deceased, under the special facts in the case, was held to be a dependent. In another, heirs was held to mean ■widow.^ The widow of a member of a mutual benefit asso- ciation is the beneficiary under a certificate issued by it which is payable to " his heirs," he having brothers and sisters but no children.^ The Supreme Court of Ohio has held that it is not within the power of a member of a benefit society to try to make one who is not related to him his beneficiary and heir within the statute limiting beneficiaries to the fam- ilies of heirs of members * Under the general rules and the statutes, in most States governing such cases of legacies to a class, heirs would take per stirpes.^ § 260a. Kelatives. — In the Massachusetts statute and in the charters of some benefit societies the word " relatives " is used. This term undoubtedly is synonymous with rela- tions or kindred,* and is to be construed accordingly. It has long been settled that the word, relatives, when used in a, will or statute, includes those persons who are next of kin under the statutes of distribution, unless from the nature of the bequest or from the testator having author- ized a power of selection, a different construction is ' Am. Legion of Honor e. Perry, 140 Mass. 580. » Addison v. N. E. C. Travelers' Assn., U4 Mass. 591; 12 N. East. Eep. 407; Kaiser v. Kaiser, 13 Daly, 522. ' Jamieson v. Knight's Templar, etc., Assn., 12 Cin. L. Bui. 272 (Supe- rior Ct. Cin.) . * National Aid Assn. v. Gonser, 43 Ohio St. 1. ' 2 Eedf . on Wills, *34 ; Burgin v. Patton, 6 Jones Eq. (N. C.) 425 ; Gos- ling V. Caldwell, 1 Lea (Tenn.), 454; Conigland p. Smith, 79 N. C. 308. * BouvierLawDic, tit. " Relative." 390 DESIGNATION OF BENEFICIABr. § 261 allowed.* In the construction of a statute it has been held not to include a stepson ^ nor a wife.* In this latter case the court said: " There seems to be no authority for hold- ing that the word relation, in its strict legal and technical sense, includes husband or wife. On the contrary, authorities are found very direct and explicit to the point that they are not relations. Thus in 2 Williams on Execu- tors,* it is laid down that » no person can regularly answer the description of relations but those who are akin to the testator by blood'. A wife, therefore, cannot claim under a bequest to her husband's relations nor a husband as a relation to his wife.' " The Supreme Court of Penn- sylvania' has decided that in a will the terms, " my near- «st relations or connections" do not include the testator's wife. The decision says: " A wife is no more a relation of her husband than he is of himself." The English rule is the same.* The word "relations" includes only rela- tions by blood and not connections by marriage, even a husband or wife.^ § 261. Dependents. — The statutes of the various States, and a majority of the charters of the leading benefit asso- ciations, restrict the payment of benefits, among other classes, to the " dependents " of the member, or " those dependent on him." In the discussion of the meaning of this word "dependents" we have not the benefit of a series of judicial decisions extending over many years, for the 1 Drew «. Wakefield, 54 Me. 291 ; 2 Jarm. on Wills, 661 ; Boayier's Law Die, tit. "BelatiTe." ' Eimball v. Story, 108 Mass. 382. * Esty Admr. v. Clark et al., 101 Mass. 36. * p. 1004. ' Storer v. WheaUey, 1 Pa. St. 506. * Garrick v. Lord Camden, 14 Ves. 372. ' Paine D. Prentiss, 5 Met. 396; Estj v. Clark, 101 Mass. 36; Dickin- son v. Parvis, 8 S. &. B. 71; Kimball v. Stoiy, 108 Mass. 382. 391 5 261 DESIGNATION OF EENEFICIART. point has not often arisen ; but the only cases bearing di- rectly on the subject wiU be referred to in the course of this inquiry. Webster's Dictionary defines the word pri- marily to mean, " One who depends; one who is sustained by another, or who relies on another for support or favor j a retainer; as a numerous train of dependents." In cases- arising under the homestead and exemption laws, the courts- have, with scarcely an exception, held that hired servants are not members of a family within the meaning of those laws.^ Following the analogy of these precedents we must conclude that "retainers " or servants are not to be classed among dependents, nor is any person whose relation to the testator is fixed by contract and not by situs, except, of course, husband and wife, who undoubtedly are dependent* each upon the other. We must logically exclude also those whose dependence upon the member is for favor, which may or may not take a pecuniary form, and which may be cast off at pleasure. Evidently, to bring a person within the cir- cle of dependents, there must be some more substantial and open reliance, and yet we can easily conceive of cases where a state of dependency may be actual, although no legal nor moral duty rests upon the member to give aid or support tO' the dependent. Under the definition, three classes are left, and even these have no well-defined limits, or bounds of separation; so that all persons can be segregated into one or the other division. " One who depends," — what is in- cluded in this definition? We are all more or less depend- ent on each other, and so are dependents, yet none can affirm that all the world is included in the class named in the char- ters or statutes. "One who is sustained by another, or who relies on another for support." Taking this definition as a whole, we are forced to the conclusion that they limit the term dependents to those who reasonably rely upon an- other for subsistence, nourishment and support. In a 1 Thompson on Homesteads, etc., §§ 45-47. 392 DESIGNATION OF BENEFICIARY. § 26t Wisconsin case,' the Supreme Court defined dependent as follows: "We think the true meaning of the word * de- pendent,' in this connection, means some person or persons dependent for support in some way upon the deceased." This definition has been cited and seemingly approved by the Supreme Court of Massachusetts,* which held, under the special facts in the case, that the betrothed of the member was not a dependent upon him, nor was his sister, nor a sis- ter of his deceased wife. In another Massachusetts case,* a mother was not claimed to be a dependent. The question has also arisen in Missouri, where the statute * authorizes certain benevolent corporations to provide by assessments on their members certain benefits for ' ' the relief and aid of the families, widows, orphans or other dependents" of the deceased members. In construing this section the St. Louis Court of Appeals says: * " Counsel for the appellant argues that section 972 contains a limitation of power, and,, as the provision is for ' relief and aid,' the beneficiary must not only be a member of the family, or a widow, or orphan of the deceased member, but also must have lived dependent upon him for support. There is no warrant for this construction. The words ' other dependents,' are in- serted 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 con- struction would require the court in each case to enter into an investigation 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 destruc- tion. This is in accord with the construction placed upon ' Ballon V. Gile, 50 Wis. 614. > American Legion of Honor v. Perry, 140 Mass. 580 » Elsey B. Odd-fellows, etc., 142 Mass. 224. * § 972, Rev. Stat. 1879. ' Grand Lodge v. Eisner, 26 Mo. App. 116. 393 ■§261 DESIGNATION OF BENEFICIABT. the statute by the Supreme Court of Michigan in Supreme Lodge V. Naim,^ where it is held: ' The laws of that State { Missouri) expressly forbid corporations of this sort from paying benefits to any bat the member's family or de- pendents. 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 way, or in some actual dependence on the member.' " From the definition and cases cited it seems that whether or not a person is included among the dependents of a member of a benefit society is a question of fact, and that each case must be decided upon its own merits. In accordance with the liberal view of the Supreme Court of Michigan,^ in defining who are included in the term family, we should say that if any person, rela- tive of the member or not, was supported by him, directly or indirectly, or wholly or in part, at his home or abroad, because of a legal or moral obligation, or merely from af- :fection, such person might be called a dependent and be designated as the beneficiary of such member. But in all <;ase3 it would appear essential to apply the test of good :faith, for mere capricious liking or temporary liberality in the way of gifts would not make the recipient a dependent.* A person whose only relation to the deceased member is that of a creditor, is not a person dependent upon him, within the meaning of the statutes authorizing the organiza- tion of societies to pay benefits to the famibes, dependents, «tc., of deceased members, and a promise by the association to pay such a creditor is void. It has been said: * " Such a promise is beyond the powers of the association, and con- travenes the intention of the statutes under which the asso- I 60 Mich. 44. * Ciinnichael p. N. W. Mnt. Ben. Assn., 61 SUch. 494. s Thompson on Homesteads, § 50; Se&ton v. MaishaU, 6 Bnsh, 439; Dfarsh c. Lazenby, 41 6a. 153. « Shillings «. Mass. Benefit Assn. (Mass.), 16 M. East. Bep. 566; 6'S. £ng. Bep. 718. 394 DESIGNATION OF BENEFICIARY. § 262 -ciation was organized. The plaintiff cannot, therefore, maintain an action on this promise either for his own use, or for that of any other person." ^ § 262. Ljegal Representatives: Devisee: Legatee. — We may group under one heading the remaining terms most commonly used in describing the classes among whom Ihe designation of beneficiaries must be made. " Legal rep- resentatives " is perhaps the most important of these. In construing the meaning of this word, as employed in a stat- ute forbidding the use in business by any person of the name of any one formerly connected with him in partnership without the consent of such person so formerly connected, or his legal representatives, the Supreme Court of Massa- chusetts held^ as foUows: " There can be no doubt that the ■ordinary meaning of the term ' legal representatives ' is executors and administrators.' In wills, the term may mean whatever the testator intended ; but, if the meaning is not controlled by the context, it means executors or ad- ministrators.* In the construction of statutes, technical words and phrases, and such others as have acquired a pe- culiar and appropriate meaning in the law, are to be construed and understood according to such peculiar and appropriate meaning, unless such construction would be in- consistent with the manifest intent of the legislature, or repugnant to the context of the same statute. Accordingly, in a particular statute this term was held to include heirs.* Looking at the legislation now before us for 'Construction nothing is found to change the ordinary 1 Bice V. New Engl&nd M. A. Soc. (Mass.), 6 N. £og. Rep. 813; 15 N. £. Bep. 634; Briggs c. Earl, 139 Mass. 173; I N. East. Bep. 817; Am. Legion of Honor c. Perry, 140 Mass. 580; 5 N. East. Rep. 634; IN. Eng. Bep. 715. » Lodge V. Weld, 139 Mass. 499. ' Cox V. Cnrwen, 118 Mass. 198; Price v. Strange, 6 Madd. 159. « 2 WiUiams on Ex. 1216-1220. ' Johnson v. Ames, 11 Pick. 173, 180. 395 § 263 DESIGNATION OF BENEFICIARY. meaning of the term." It may mean a widow or chil- dren who are legal representatives in the contemplation! of the charter and by-laws.^ " Devisee" is one to whom a devise, i.e., a gift of realty, is given by a will, and' '• legatee " is one to whom a legacy, i.e., a gift of person- alty, is given by a will ,2 but in construing these terms the courts are inclined to search for the intent of the instru- ment maker.* In one case * the designation was " to his^ devisees, as provided in last will and testament, or, in event of their prior death, to the legal heir or devisees of certifi- cate holder," and the member died intestate. In proceed- ings brought in equity to recover, the court held these word* to be equivalent to a promise to pay to the devisees, if there- should be any, and if not then to his heirs.* §263. Ambiguous Designation : "Estate." — If the name of the person, for whose benefit the insurance is ob- tained, does not appear upon the face of the certificate or 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 cannot be understood without ex- planation, 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 mind of the parties when the contract was made.* So, where the agent was told that the insurance was desired for the benefit of the widow and heirs of Daniel 1 Sfasonic Mut. Relief A. v. McAuley, 2 Mackey, 70. * Bouvier's Law Diet., tit. "Devisee," "Legatee." « Lodge V. Weld, 139 Mass. 499. * Covenant Mat. Benefit Assn. v. Sears, 114 111. 108. . Odd-fellows, 142 Mass. 224; Am. Legion of Honor ». Ferry, 140 Mass. 580; Mutual Ben. Assn. r. Hoyt, 46 Mich. 473; Enigbts of Honor v. Nairn, 60 Mich. 44; Bice v. 'S. Eng. M. A. Soc, 6 K. Eng. Bep. 813; 15 N. E. Bep. 624. The Supreme Court of Massachusetts i» firm in holding these contracts ultra vires and void. 4U2 CHAPTER Vin. CONSUMMATION OF CONTRACT: INCOMPLETE CONTRACTS: JURISDICTION OF EQUITT TO REFORM OR CANCEL. § 266. To Complete Contract of Insurance Negotiations mnst be Con- cluded. 267. Application mnst be Accepted to make a Contract. 268. Proposal may be mthdrawn at any time be:fore Acceptance. 269. If the Policy be Different from that Applied for it is not Binding upon the Company nntil Accepted by the Applicant. 270. Delay in Acting upon an Application will not Amonnt to Accept- ance : Company not Bound to Accept. 271. Company may be Bound though Application has been Rejected or not Acted on. 272. When Contract of Insurance becomes Complete. 273. The Same Subject: Contract may be Complete without Delivery of the Policy. • 274. Fraudulent Delivery of Policy. 275. After Contract is Complete Change in Risk Immaterial. 276. There maybe a Conditional Delivery of Policy. 877. Unconditional Delivery of Policy by Agent in Violation of In- structions. 278. Court of Equity can Correct Mistakes in Insurance Policies. 279. Equity wiU Relieve if Agent has Acted in bad Faith. 280. Or if the Policy does not Conform to the Application. 281. Or if the Errors are Manifest. 282. Reasons for Refusal to Interfere. 283. No Relief when Legal effect of Plain Terms was Misunderstood* 284. Application of Foregoing Pijnciples to Benefit Societies. 285. Jurisdiction of Equity to Decree Cancellation. 286. The Same Subiect: Application to Benefit Societies. 287. The Same Subject: Cancellation after Loss. 288. General Doctrine as to Interference of Equity Stated. § 266. To Complete Contract of Insarance Kegotia- tions must be Concluded. — We have seen ^ that the con- tract of insurance is the result of negotiations which are 1 Ante, § 189, et seq. 403 § 266 CONSOMJIATION OF CONTBACT. generally conducted through the medium of stents. On the one side is the proposal, or application, of the insured, on the other is the acceptance of such offer by the insurer before there can be a complete contract. Various import- ant and interesting questions arise as to when the contract id complete and at what point in the negotiations it becomes binding upon one side or the other. The business of hfe insurance companies, as now conducted in this country, is done in this way : an agent solicits the application, which, accompanied with the certificates of medical examination, of the referee, and of the agent, is sent to the company, whose immediate officers accept or reject it. If accepted a policy is forwarded to the agent, who countersigns it and de- livers it on payment of the premium. The customs of the various companies are somewhat difi'erent, but their methods of doing business are substantially the same. Benefit socie- ties pursue a somewhat similar course . In applying for mem- bership, and the insurance incident thereto, the applicant sends his application to the officers of the local lodge, accom- panied with the prescribed fee : he is examined by the lodge physician, and the papers are sent to the grand medical exam- iner, who approves or rejects. If approved the applicant ia voted on by the lodge, and, if received, is initiated into membership, after which the grand or supreme lodge issues the certificate, which is countersigned by the officers of the local lodge and delivered. In different societies these processes are not always the same, nor are they always in the order stated, for often the member is not initiated until the grand lodge approves of the examination and issues the certificate. Generally, the course pursued is as first indi- cated. There is this difference between the methods of conducting the business of benefit societies and that of life insurance companies: the lodges have greater powers than the insurance agents. The lodge is the sole judge of the moral and social qualifications of the applicant, as the grand 404 OONSDMMATION OF CONTRACT. § 2fi7 or supreme lodge is the judge of his physical qualifications ; the powers of insurance agents are limited. Subordi- nate lodges, like agents of life insurance companies, seldom have the authority to absolutely conclude a contract. Their powers are'ordinarily confined to the procuring of applica- tions for insurance without any right to make a binding agreement. In some cases, as when, an agent represents a foreign company, the agents may have a qualified authority to make their contracts^ temporarily binding during the period necessary to transmit the application to the company, or tiie grand, or supreme, lodge officers, and receiye a reply. But the usage that lodges, or agents, cannot con- clude a contract is so general that if an exception is alleged there must be eyidence of actual authority, or of the repeated exercise of the authority with the knowledge of the company. In the case of benefit societies the constitu- tion and by-laws is the source of authority and in applying for membership the applicant will be presumed to have ac- quainted himself with their requirements and limitations of the authority of lodges.^ Before the company, or society, can be held liable for the insurance applied for, the n^otia- tions must haye reached such a point that nothing remains for either party to do except to comply with its terms.* § 267. Application Slnst be Accepted to Make a Con- tract. — The application for insurance is a mere proposal on the part of the applicant.* When the insurer signifies his acceptance of it to the proposer, and not before, the minds of the parties meet and the contract is made. This acceptance must be signified by some act, a simple mental > Snpieme Ia^k, etc, v. Grace, 60 Tex. 569. * Coimecticat Mat L. Ins. Co. v Kudolph, 45 Tex. 454; Todd r. Piedmont & Arlington h. Ins. Co., 34 La. Ann. 63. As applied to leTirAl of lapsed policy: DibolliiErna L. Ins. Co., 32 I*. Ann. 179. ' McCnlly r. Phtenix M. L. Ins. Co., 18 W. Va. 782: Heiraan v. Phcenix M. h. Ins. Co., 17 Minn. 157. 405 § 2t)8 CONSUJIM VTIOX OF CONTRACT. acceptance, a mere thought unexpressed, amounting to nothing.* This application must be in due form and signed by the applicant if the rules so require. As where the rhles of a society required that the medical examination of an applicant and his application for a benefit certificate, which contained an agreement and warranty of the truth of the answers, be signed by him, which was not done, and no cer- tificate was issued on that account, it was held that no lia- bility resulted.^ In this case, the court said: " The minds of the respective parties never met. There was no such mutual agreement and understanding of the matter between them as is essential in order to create the contract and give it binding force on both parties, under the rules and regu- lations by which the relations of the deceased to the appel- lant were governed." Where application was made to a benefit society in due form, and the agent received the papers and the applicant was examined by the medical ex- aminer and gave his note for the first payment, but was killed before the note was paid or the application forwarded, it was held,^ that until the application was approved by the company there was no contract. The court said: "The application in such cases is a mere proposal, and, until it is accepted, there can be no contract, for until that time the minds of the parties have not met. There is simply aa offer on one side, which may be accepted or rejected by the other. There must be a meeting of the minds of the parties, in all cases, as to the whole subject and the sub- stantial conditions of the whole contract, or there is ob- viously no contract." § 268. Proposal may be Withdrawn at any Time before Acceptance. — It follows that the applicant can, at any time ' Ala. Gold Life Ins. Co. v. Mayes, 6l Ala. 163; Heiman v. Phoenii Mut. L. Ins. Co., 17 Minn. 157; Tayloe v. Merch. F. Ins. Co., 9 How. 390. » Supreme Lodge, etc., v. Grace, 60 Tex. 570. ' Covenant M. B. Assn. v. Conway, 10 Bradw. 348. 4()G CONSUMMATION OF CONTRACT. § 269 before the application is accepted, withdraw it, and, if he -does so, is not bound to accept the policy.^ The principle is that laid down in relation to all contracts,* that " the party making the promise is bound to do nothing unless the promisee, within a reasonable time, engages to do, or else does or begins to do, the thing which is the condition of the £rst promise. Until such engagement or doing, the prom- issor may withdraw his promise, because there is no mutuality, and, therefore, no consideration for it." • § 269. If tbe Policy be DifTerent from that Applied for, it is not Binding upon the Company until Accepted by the Applicant. — If the policy, issued by a company, is, in any particular, different from that applied for, it is not binding upon the company until it is accepted by the appli- -cant. An interesting and important case determining this point was decided by the Supreme Court of the United States,* where the facts were these : The applicant, in due form, applied for a policy of life insurance, the premiums on which were to be paid quarterly, and gave his note for the amount of the first payment; the company accepted the risk, but changed the amount of the premium and ante- dated the policy. The agent received the policy and six ent. Suit was brought on the policy, judgment rendered against the company in the Federal court, and an appeal was taken to the Supreme Court of the United States, which reversed the case, holding that, owing to the change in the terms of the policy from those contemplated by the appli- I Globe Mat. L. Ins. Co. o. SneU, 19 Hon, 561. * 1 Pars, on Con. 550. * Beal Estate M. F. Ins. Co. v. Boessle, 1 Gray, 336. * Insorance Co. v. Yoong, 23 Wall. 85. 407 $ 270 CONSUMMATION OF CONTRACT. cant, the acceptance of the company was a qua]ified accept- ance, which the applicant was not bound to accept, and that, in the absence of evidence of such acceptance, the company was not held by the policy. In its opinion, the court said: " The mutual assent, the meeting of the minds, of both parties, is wanting. Such assent is vital to the ex- istence of a contract. Without it there is none, and there can be none. In this case it is not established by any direct proof and there is none from which it can be in- ferred. * * * If he had received notice of the propo- «ition made through the policy, it would have been at his. •option to give or refuse his assent. He was certainly in no- wise bound until such assent was given. Until then there- could be no contract on his piirt, and if there was none on his part, there could be none on the part of the company. The obligation in such cases is correlative. If there is none on one side, there is none on the other. The requisite assent must be the work of the parties themselves. The- law cannot supply it for them. That is a function wholly beyond the sphere of jadicial authority. A» the applicant was never bound, the company was never bound." 1 § 270. Delay In Acting upon an Application will no- Amount to Acceptance : Company not Bound to Accept. — The company is not obliged to act at once upon the appli- cation. The fact that an application has been made for insurance, and a long time has elapsed, and the rejection of the risk has not been signified, does not warrant a pre- sumption of its acceptance. There must be an actual ac- ceptance, or there is no contract.- In a case where it was- ' Byrne ». Casey (Tex.)i 8 S. W. Rep. 38. •' Haekin v. Agricultural F. Ins. Co., 78 Va. 707; Markey v. Mut. Beu. Ins. Co., 103 Mass. 92; Haden v. Farmer's & M. F. Ins. Co , 80 Va. 083. Winnesheik Ins. Co. v. Holzgrafe, 53 111. 523. 408 CONSUMMATION OF CONTRACT. § 270 claimed th^t the delay of the company in acting upon the application was to be deemed a consent^ the court said: "We are not aware of any authority for the proposition, that mere delay — mere inaction, can amount to an accept- ance of a proposal to enter into a contract. The opposite is the true doctrine, that if no answer is given to a propo- sition for a contract, within a reasonable time, the proposi- tion is regarded as withdrawn. The principle is stated in, Hallock V. Commercial. Ins. Co.* that a contract arises^ when an overt act is done, intended to signify an accept- ance of a proposition, whether such overt act comes to the knowledge of the proposer Or not, and unless a proposition, is withdrawn, it is considered as pending until accepted or rejected, provided the answer is given in a reasonable time. If the applicant 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 retracted 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 supineness of the appellant, no greater than his own, as an acceptance of the proposal." * The company is not bound to accept if no good cause for rejection exists.*" If a mutual organization, the directors may be actuated by other considerations than the quality of the risk.* The company can reject the application, although part of the premium or all of it has been paid.' This doctrine applies- I Alabama Gold L. Ins. Co. «. Mayes, 61 Ala. 163. » 26 N. J. L 263; 27 N. J. L. 645; 72 Am. Dec. 379. } Insoxance Co. v. Johnson, 23 Fa. St. 72; Bentley v. Colombia Ins.. Co., 17 N. Y.421; Flanders on Ins. 108. * Ins. Co.«. Yonng, 23 Wall. 85: Ala. Gold Life Ins. Co. v. Mayes,. 61 Ala. 163. But see po«f, §273, Oliver c. Am. Legion of Honor. < Harp «. Granger's Mnt., etc., Ins. Co., 49 Md. 309. • Otterbein v. la. State Ins. Co., 57 la. 271; Todd v. Piedmont & Ar- HngtonL. Ins. Co., 34 La. Ann. 63; Supreme Lodge o. Grace, 60 Tez> 669. 40!» 4 272 CONSUMMATION Or CONTRACT. to mutual companies.^ Where the apph'cation and pre- mium were duly forwarded by mail, but the company never received them or heard of them, so that neither policy was issued nor money returned to the applicant as was provided in the receipt given by the agent, it was held that no con- tract existed.^ § 271. Company may be Bound thongrta Application has been Rejected or not Acted on. — But it is possible under some circumstances for the officers of a company to bind it, although in fact the application has been declined; as where the secretary and director of a mutual com- pany took the applicant's application, premium note and note for cash premium and promised to notify him if the application was rejected and in that case to return the notes. The application was rejected. Seven months afterwards the applicant's premises were burned, but he had received no notice of the rejection of his application. In an action on the contract the plaintiff recovered and this judgment was affirmed by a divided court. * So, where on the organi- sation of a company a large number of applications with premium notes were received, and, before the approval of •one of them, but the next day after the formal organiza- tion, a loss occurred, it was held that the company was .liable.* § 272. When Contract of Insurance Becomes Com- plete. — A contract of insurance never becomes complete luntil the last act necessary to be done by either party has in fact been done, although one side or the other may con- ditionally bind itself by a proposition which, when uncon- 1 Walker v. Farmer's Ins. Co., 61 la. 679; 2 N. W. Bep. 683;, Arm- Strong V. State Ins. Co., 61 la. 212; 16 N. W. Rep. 94. 2 Atkinson v. Hawkeye Ins. Co. (Iowa), 32 N. W. Kep. 371. * Somerset Co. F. Ins. Co. v. May, 2 W. N. C. (Pa.) 43. '' Van Slyke v. Trempealeau, etc., Ins. Co., 48 Wis. 683. 410 CONSUMMATION OF CONTRACT. § 272 ■ditionally accepted, ripens the negotiation into a contract. In the case of fire insurance contracts there is often a con- tract before the policy is issued or before it is delivered to the insured, but this is seldom so with life insurance agree- ments, because there is usually, in the applications as well ^s the policies, a stipulation that the policy shall not be binding until delivery to the assured while in good health and payment of the premium by him. Under some cir- cumstances there may be a waiver of this last condition by A delivery of the policy, but this question is more properly one of waiver. With benefit societies all these questions may arise, although their habits and course of business are more simple, for necessarily there is the same kind of an -application or proposal which is to be accepted, either ■conditionally or unconditionally, by the directors of the society.^ Unless provided otherwise in the contract, the acceptance of the proposal to insure for the premium offered, is the completion of the negotiation, and after the policy or certificate has been forwarded to the agent of the ■company for delivery, the contract cannot be rescinded without the consent of the party insured.* It is, of course, different if any act remains to be done by the insured, or if it be stipulated that it shall not be binding until delivered by the agent. Thus, where the defendant made an applica- tion for insurance to the agent of the company in New Jersey and paid the premium, the policy to be issued and ■delivered to him if his application was accepted. The ap- plication was sent to the company in Pennsylvania and there approved and the policy issued and mailed to the ap- plicant. It was held by the Supreme Court of New Jersey* that the contract was made in Pennsylvania and was com- plete as soon as the application was accepted and the policy ' See post, § 273. > Hallock V. Insurance Co., 26 N. J. L. 278 ; Ala. Gold L. Ins. Co. r. Herron, 56 Miss. 643: Shattuck v. Mut L. Ins. Co., 4 Cliff. 598. s Northampton, etc., Ins. Co. r. Tuttle, 40 N. J. L. 103; 39 N. J. L. 486. 411 § 272 CONSUMMATION OF CONTRACT. deposited in the mail. Other aathorities support this view.' And where it was agreed between the agent and the assured, that the first premium should be paid by note, and accord- ingly the application was forwarded, accepted by the com- pany and returned to the agent, who refused to deliver it as the assured was sick, it was held ^ that the policy became binding upon the company when it was placed in the mail at the office of the company, if not, then certainly when it reached the hands of the local agent. So, when an applica- tion for insurance received by the agent was sent by him to the home office of the company, and the company ac- cepted it and sent the policy to the agent, it was held by the Supreme Court of Minnesota ^ that it was the duty of the agent to deliver the policy upon tender of the premium, even though the person whose life was insured had become- dangerously ill, unless it was otherwise agreed between the parties, or he was otherwise instructed by the company .*^ But delivery of the policy under circumstances which amount to fraud on the part of the assured will not change- the relations of the parties. Thus, where negotiations were- still pending between an agent of the company and the applicant concerning the precise terms of the contract and the mode of payment, a friend of the applicant paid the- premium, concealing the fact that the assured was sick^ and the latter in fact died a few hours later, and the agent, in ignorance of the facts, delivered the policy, the Supreme Court of the United States held * that there was no con- tract. If the application provides that the policy shall not be in force until it is delivered to the applicant, the contract 1 Adams o. Lindsell, 1 B. & Aid. 681; Mactier v. Frith, 6 Wend. 103; Tayloe v. Merchants' F. Ins. Co., 9 How. 390; 2 Kent's Com. 477. 2 Yonge V. Equitable L. Ass. Soc, 30 Fed. Eep. 902. ' Sch-wartz v. Germania Life Ins. Co., 21 Minn. 215. * Schwartz ». Grermanla Life Ins. Co., 18 Minn. 449. » Piedmont, etc., Ins. Co. v. Ewing, 92 U. S. 377. . 412 CONSUMMATION OF CONTRACT. § 273 of insurance will not become binding upon the company until delivered.^ § 273. The Same Subject: Contract maybe Complete -without Delivery of the Policy. — A contract of insur- ■ance, however, may be complete without deliveiy of the policy, as where it has been made and executed and notice ^ven to the assured,^ or if the applicant is notified that his Application has been accepted; * and there need not be manual delivery of the policy.* But where, independent of the policy, there is nothing to show any acceptance of the application, or any agreement to insure, the presump- tion is that while there were negotiations there was no con- tract, and no purpose to contract otherwise than by a policy made and delivered upon simultaneous payment of pre- mium. Where there has been no transfer of the legal manual possession of the policy to the insured, or to any person for him, so as to constitute a delivery in fact, the policy is prima facie incomplete as a contract, and it de- volves upon the alleged insured to show that the real inten- tion was to pass the legal title and possession of the policy without or before payment of premium, and without de- livery in fact, and that, though retained by the company's agent, the policy was constructively delivered.* It is usually a question of fact, depending upon the special cir- oamstances of the case, whether anything remained to be done to complete the agreement, or if there was, whether ■doing it was waived." For example, in a case in Nevada, ' Kohen v. Mat Reserce Fund L. Assn., l'8 Fed. Rep. 705; Misselhom Same, 30 Fed. Rep. 545. ' Sheldon v. Conn. Mut. L. Ins. Co., 25 Conn. 207 ; 65 Am. Dec. 565. » Ala. Gold Lite Ins. Co. x;. Herron, 56 Miss. 643. * Insurance Co. v Colt, 20 Wall. 560. ' Heimano. Phcenix Mut. Life Ins. Co., 17 Minn. 153. • Gay r. Farmers', etc., Ins. Co., 51 Mich. 245; Kelly v. St. Louis ^^. . Ins. Co., 3 -Mo. App. 554; DiboU i. -Etna Life lus. Co., 32 La. Ann. 413 § 273 CONSUMMATION OP CONTRACT. the facts shown were that an application was made to the agents of defendant for a policy of insurance on the life of plaintiff's husband; at the time the application was made fifty dollars was paid, according to the regulations of the company, which was to be applied on the first year's premium, provide,d the defendant should conclude to make the insurance. The application thus made was forwarded to the proper office of the company and a policy made out and sent on to the agent for delivery ; but the insured hav- ing died before it was delivered, the agent refused to deliver it, although demanded and the balance of the premium ten- dered. The court held that this proof justified a conclu- sion that a contract for a policy was completed. It said : ^ «' The application for a policy by the assured, with the pay- ment 6f a portion of the premium, and acceptance of the risk by the defendant, left nothing to be done but the de- livery of the policy and the payment by the plaintiff of the balance of the premium, which, it appears, was not re- quired by the rules of the company until the completion of the transaction. These facts show a valid contract for a policy between the parties. The moment the com- pany concluded to make the insurance, the fifty dollars paid to its agent became its property, without any further action on its part. It was paid upon the condition that if the company concluded to make the insurance, it should be applied in payment of the premium ; when, therefore, the risk was taken, it became the property of the defendant, and at the same time the assured became entitled to the policy. Thus, there was the acceptance of the application by the company, and the payment of a portion of the premium, as a consideration therefor, by the plaintiff, which is all that was necessary to make a valid contract between the 179; Fried v. Royal Ins. Co., 50 N. Y. 243; 47 Barb. 127; Cooper v. Ins. Co., 7Nev. IIB 1 Cooper V. Pacific Mut. Life Ins. Co., 7 Nev. 122. 414 CONSUMMATION OF CONTRACT. § 273 parties. Such contracts are as available to sustain an ac- tion for the amount of the insurance as if the policy had been issued." ^ In a case in California,* it was held that mutual benefit societies which undertake to pay money upon the death of the members are in law insurance companies and subject to the same rules. That whenever two con- structions equally fair can be given that which gives the greater indemnity shall prevail. That a contract of insur- ance is complete when the terms offered are accepted, and the contract need not be in writing unless required by statute. That the contract may be made through the mail and the terms offered are accepted upon posting a letter to that effect. In mutual benefit societies the benefit cer- tificate is merely evidence of the contract. That the medi- cal examiner cannot reject applications arbitrarily, if made in good faith, after compliance with the requirements of the order and where the medical examiner ought to have ap- proved an application, but the applicant dies before he does so, the application will be deemed approved. But the Su- preme Court of New York has held,* in an action brought against the society to recover a death benefit that as the statute creating the corporation itself designated no bene- ficiary, and as the defendant had, in accordance with the direction of the statute, provided in its by-laws that the person to whom the fund should be payable on the death of a member should be the person named in the certificate, such designation and issue of certificate were conditions precedent to the defendant's liability. The conclusion is that, in determining whether or not the contract with a benefit society is complete without issue of a certificate, the laws of the association must be alone regarded. The question is one of construction and the courts will save J Kohne c. Insurance Co., etc., 6 Binn. 219; 1 Wash. C. C. 93. ' Oliver v. Am. Legion of Honor, Sup. Ct. San Francisco, Pac. Coast. 1. J. Dec. 9, 1882: 17 Am. L. Rev. 301. • Bishop 0. Empire Order Mut. Aid, 43 Hun, 472. 415 >§ 275 CONSUMMATION OF CONTRACT. "the contract whenever possible, even though a certificate be not issued. § 274. Fraudulent Delivery of Policy. — As has been intimated, there may be a delivery of the policy to the assured under circumstances that amount to fraud by the latter. As where the assured was at the time of the pay- ment, of premium' by a friend, dangerously sick.^ The understanding is always, where a proposal is made, that the state of facts therein represented to exist does in fact exist at the time the proposition is accepted. So, if after the application has been made, a material change in the health of the applicant takes place, and which would probably cause the rejection of the risk by the insurer if known to it, it will avoid the contract.^ The reason of this rule is so ■obvious that it need not be further considered. When, however, a lapsed policy is to be reinstated no statement of intermediate changes need be disclosed unless asked for; ' -and so with changes between the date of the policy and the payment of the premium, unless otherwise stipulated, for the acceptance of the application and issue of the policy ^re upon the sole condition of payment of premium.* § 275. After Contract is Complete Change in Bisk Immaterial. — After the contract is complete, even though the policy has not been delivered or the premium paid, -changes in the condition of the risk do not affect the agree- ment, as for example where an application was made for life insurance and the premium tendered, which the agent ^refused to receive, saying that it made no difference. The 1 Piedmont, etc., Ins. Co. v. Ewing, 92 0. S. 377.^ « Whitley v. Piedmont, etc., Ins. Co., 71. N. C. 480; Wemyssii. Med. Ins., etc., Soc, 11 Ct. of Sess, 2 Ser. 345; Traill ». Baring, 4 DeGex J. & S. 318; Edwardj v. Footjier, 1 Camp. 530. " Day V. JIut. Ben. L. Ins. Co., 1 McArthur, 41. * Fourdrinier v. Hartford F. Ins. Co., 15 U. 0. (C. P.) 403; Canninjr -«. Farquhar, 16 Q. B. DIv. 7:.'7. 41(j CONSUMMATION OF CONTRACT. § 276 policy was issued and received by the agent, who notified the applicant at the place of his residence, that he was insured and that he would bring the policy down the fol- lowing week and get his money. The agent accordingly did g^o to the applicant's residence, but finding that he was sick, refused to deliver the policy unless the attending physician would certify that the assured was in no immediate danger. This certificate was given and the money again tendered, but was refused and the assured died two days later. Upon an action being brought on the policy the Supreme •Court of Georgia held that the contract was complete upon the delivery of the policy to the agent, who could not sub- sequently impose additional terms, and the change in the health of the applicant was immaterial.^ § 276. There may be a Conditional Delivery of "Policy. — A policy of insurance may be conditionally deliv- ■ered, it being held that, as they are not under seal, the rule that a deed cannot be delivered conditionally to the grantee or his agent has no application.* As where policies were delivered to be returned by the insured if he did not realize A satisfactory amount upon the cancellation of certain other policies.^ But where the policy is once delivered uncon- ditionally, previous negotiations and stipulations are thereby merged and rendered of no effect.* The question is one of fact as to what was the intention of the parties and of this the jury is the judge. The Supreme Court of Massachusetts has exhaustively discussed this subject in a 1 Southern Life Ins. Co. c. Kempton, 56 Ga. 339; Ellis v. Albany, etc., Ins. Co., 50 N. T. 402; Schwartz v. Gennania L. Ins. Co., 21 Mum. 216; Franklin F. Ins. Co. v. Colt, 20 Wall. 560; City of Davenport v. Peoria, -etc., Ins. Co., 17 la. 276. » Hamickell v. N. Y. Life Ins. Co., 40 Hun, 658; Benton v. Martin, 62 H. T. 570. » Hamickell v. N. T. Life Ins. Co., supra. * Hodge V. Security Ins. Co., 33 Hun, 583; Grace v. American Cent. Ins. Co., 109 U. S. 278. 27 417 § 277 CONSUMMATION OF CONTRACT. case that was before it on four different appeals and when it was unable to iind a delivery, although the assured had for a time had manual possession of the policy.^ Of course, where the application stipulates that it shall be the basis of the contract, which shall be completed only by delivery of the policy, the latter must be actually and unconditionally delivered in order to make the insurer liable.^ The subject of conditional delivery of the policy was discussed by the Supreme Court of Connecticut in Rogers v. The Charter Oak Life Ins. Co.* There the agent of the company meet- ing the applicant urged him to get his life insured and, after some objection from the latter, an application was made out and signed and the applicant examined by the physician. It was agreed that when the policy was made out by the company and received by the agent the latter should forward it to the assured' s address in New York City, who, if it was found to be as agreed, was to send the premium or if not return the policy. When the agent received the policy he mailed it as agreed, but the letter was returned uncalled for. The agent then sent the policy to the place where he supposed the assured might be, but he had died two days before. The court held that there was only an inchoate, not a complete, contract and that no- liability attached under it. § 277. Unconditional Delivery of Policy by Agent in Violation of Instructions. — Where there has been an un- conditional delivery of the policy in violation of the in- structions of the company, the latter will generally be bound. For example, in a case in the Supreme Court of 1 Hoytc. Mnt. Ben. L. Ins. Co., 98 Mass. 539; Markey ». Same, 105 Mass. 78; Same v. Same, 118 Mass. 178; Same v. Same, 126 Mass. 158. 2 McCuUy V. Phoenix M.L. Ins. Co., 18 W. Va. 782; St. Louis Mut. Life Ins. Co. v. Kennedy, etc., 6 Bush, 450; Collins v. Ins. Co., 7 Fhila. 201; Fauncev. State M. L. Ins. Co., 101 Mass. 279. » 41 Conn. 97. 418 CONSUMMATION OF CONTKACT. § 277 the United States the facts were these: A policy had been taken from agents who had only authority to take applica- tions and submit them to the qompany, which issued the policies and sent them to the agents to deliver and collect the premium. The agents were instructed not to deliver the policies until the whole -premium was paid, but were told if they did so the premium would stand charged to them until it was received by the company or the policies returned. It was the custom of the agents to deliver poli- cies to persons whom they deemed responsible and call for the money when wanted. In this case the policy was sent to the assured by the agents, who wrote him that they would get the money of a third person. Upon the refusal of this third person to pay, the agents so informed the assured, who promised to soon send a draft. Payment being still neglected, and the agents having learned that the person assured was " quite sick," they informed him by letter that his policy was forfeited and returned the premium notes he had given. This letter did not reach the address of the assured until after his death. The court held the company liable, saying:^ "Where the policy is delivered without requiring payment, the presumption is, especially if it is a stock company, that a credit was intended, and the rule is well settled where a credit is intended, that the policy is valid, though the premium was not paid at the time the policy was delivered, as where credit is given by the gen- eral agent and the amount is charged to him by the com- pany, the transaction is equivalent to payment." ^ In a somewhat similar case in Tennessee the facts were that the assured applied for a policy to one Smithurst, the agent of the company for Louisiana, who sent the application to the home office of the company in Memphis, where it was ac- 1 MUler V. Life Ins. Co., 12 Wall. 285. ' The court cite Golt o. Ins. Co., 25 Barb. 189; Sheldon v. Atlantic P. * M. Ins. Co., 26 N. Y. 460; Wood v. Ins. Co., 32 N. Y. 619; Bragdoa V. Ina. Co., 42 Me. 259; Trustees v. Ins. Co., 18 Barb. 69; 19 N. Y. 305. 419 § 277 CONSUMMATION OP CONTRACT. cepted and the policy issued. Part of the premium was to be paid by note, the remainder in cash, the agent being instructed to deliver the policy only upon the actual pay- ment of the cash part of the premium. On its face the policy acknowledged receipt of the premium, but the ap- plication, shown to be a part of the contract, stipulated that the policy should not be binding upon the company " until the amount of the premium as stated therein shall have been received by said company, or some authorized agent thereof, during the lifetime of the person assured." ismithurst delivered the policy without the cash payment, accepting the note of the assured for the amount. Soon after Smithurst was succeeded by Hatch & Smith as agents, and they found that the policy had been delivered without payment of the cash part of the premium. A draft was drawn for the amount, accepted by the assured, but was not paid and was afterwards surrendered and a note taken which was not paid, although payment was frequently de- manded. Soon afterwards the assured died. The court held ' that the company was liable and that Smithurst was a general agent of the company and, " being a general agent, without special instructions limiting his power, he has the power to determine for himself what he is willing to accept as a payment of the cash premium — when the cash is actually paid to him, the company can only look to him for it — if he chooses to receive something else than cash, it is probable that as between him and his principal, the latter would have the right to treat it as a cash payment to him and hold him responsible accordingly — so that the company would have, if they choose to exercise it, the same right they had before, and the agent only would be the loser." In the case of mutual companies the rule might not apply if there was any by-law of the company to a dif- ferent effect, for the applicant is supposed to acquaint him- 1 Southern Life Ins. Co. v. Booker, 9 Heisk. 606; 24 Am. Bep. 344. 420 CONSUMMATION OF CONTRACT. § 278 self with the laws of the concern. But the question is one of construction and of the intent of the parties.^ § 278. Court of Equity can Correct Mistakes in Insur- ance Policies. — "It is well settled," says Chancellor Walworth * " that a court of equity has jurisdiction to cor- rect mistakes in policies of insurance, as well as in all other written instruments.^ But the evidence of such mistake, and that both parties understood the contract in the manner in which it is 'sought to be reformed, should be clear and satisfactory. In policies of insurance, the label or written memorandum from which the policy was filled up, is always considered of great importance in determining the nature of the risk and the intention of the parties." This is the case where the applicant trusts the agent to fill out the pol- icy according to his wishes, although there is a mistake of law. Thus, where the plaintiff had been induced to act upon the superior knowledge of the defendant's agent; the fact being that an agreement had been made between the insured and the agent that certain insurance should be granted by the latter on the property of a firm of which the insured was a member. The agent, without fraud, in- duced the insured to have the policy made in his own name, assuring him that in that form it would protect the firm. The Supreme Court of the United States held * that the pohcy must be reformed to meet the intention of the parties, on the ground that the insured had trusted the agent concerning the proper mode of executing the policy. The case therefore was one of trust. So, where a mortgagee applied for insurance through an agent, intending to pro- 1 Miilrey v. ShaTrmnt Mnt.,|etc., Ins. Co., 4 Allen, 116; Badger v. American Popular L. Ins. Co., 103 Mass. 244; Mtoa, F. Ins. Co. v. Web- ster, 6 Wall. 129 ' Phoenix F. Ins. Co. v. Gumee, 1 Paige Ch. 278. » Phil, on Ins. 14. * SneU V. Insurance Co., 98 TT. S. 85. 421 § 278 CONSUMMATION OF CONTKACT. cure an insurance of his mortgage interest, and so stating to the agent, but the agent drew the application as for an in- surance on the property itself, in the name of the mortgagor and as his property, the amount to be payable in case of loss to the mortgagee, and so made the application and had the policy so made in the belief that such was the proper legal mode of effecting an insurance on the mortgage inter- est, it was held by the Supreme Court of Connecticut ^ that the mistake could be corrected by a court of chancery, although it was one of law and not of fact. This principle has been generally adhered to,^ and, in general, equity will reform a policy which does not insure the interest upon which insurance was desired because of an error of law on the part of insurer's agent,' and this even after a loss.* In a recent case the Maryland Court of Appeals said:* " The law is well settled that where the general agent of a com- pany is entrusted with the power to make and issue policies, and the insured fully and frankly discloses all facts material to the risk, and the agent in making out the policy, through fraud or mistake, fails to state such facts, such error or fraud on the part of the agent cannot be relied on by the company in avoidance of the policy, and a court of equity, upon application, will reform the policy so as to make it ex- press the real contract between the parties." ° The court 1 Woodbury Savings Bank, etc., v. The Charter Oak, etc., Ins. Co., 31 Conn. 617. 2 LonghoTStt). Star Ins. Co., 19 Iowa, 364; Ben Franklin Ins. Co. v. Gillett, 54 Md. 212 ; FarmvUle Ins. Co. v. Butler, 55 Md. 233. 8 Bailey v. American Cent. F. Ins. Co., 4 McCrary, 221; 13 Fed. Rep. 250; Sias v. Roger Williams Ins. Co., 8 Fed. Eep. 183; Keith ». Globe Ins. Co., 62 m. 518; Oliver v. Ins. Co., 2 Curt. C. C. 277. * Woodbury Saving Bank v. Charter Oak, etc., Ins. Co., 31 Conn. 517; Fink V. Queen Ins. Co., 24 Fed. Eep. 318; HUl v. Millville Mut., etc., Ins. Co., 39 N. J. Eq. 66. " Ben Franklin Ins. Co. v. Gillett, 64 Md. 212. « The court cites Insurance Co. u. Wilkinson, 13 Wall. 222; Ins. Co. V. Mahone. 21 Wall. 152; Saving Bank v. Charter Oak Ins. Co., 31 Conn. 617; Rowley v. Empire Ins. Co., 36 N. Y. 550; Columbia Ins. Co. ». 4-22' CONSUMMATION OF CONTRACT. § 278 of Errors and Appeals of New Jersey goes farther and says : ^ *' If the proposal for insurance be prepared by the agent of the company, and he misdescribe the premises, with full knowletlge of their actual condition, and there be no fraud or collusion between the agent and the insured, the contract of insurance may be reformed in equity and made to conform to the condition of the premises as they were known to the Agent." ' So, in a case where, after the issuing of the pol- icy to the plaintiff, he called the attention of the local agent to the erroneous description of the building insured, but was told that it made no difference, and afterwards the general agent and secretary of the defendant inspected the property, with a fuU knowledge of the description of the building, and pronounced the risk a good one, it was held * that the policy would be reformed. The court said: " The plaintiff was not careless; was not thoughtlessly satisfied with the terms of the policy, but sought an emendation thereof, and was baulked of a successful pursuit thereof by the action and declaration of the defendants through their Agents and officers." The court continues: "It is enough to authorize the reformation of the contract, if it appear that, through the mistake of both parties to it, the intentions of neither have been expressed in it. Now, if a court of «quity had a right to find from the evidence that both the insurer and the insured meant to insure the very building that was burned ; and meant to put in the policy no expres- sion as to the character or situation of it different from the facts ; but, by a misconception as to the meaning and effect of language, have used terms which do express that which Cooper, so Fa. 331; Masters v. Madison Ins. Co., 11 Baib. 621; Feck e. JNew London Ins Co., 22 Conn. 575. ' 1 Franklin F. Ins. Co. v. Martin, 40 N. J. C. 574. " The court cites CoUett v. Morrison, 9 Hare, 162 ; In re Universal, «tc., F. Ins. Co., L. R. 19 Eq. 485; Malleable Iron Works v. Phoenix Ins. Co., 25 Conn. 465; Woodbury Savings Bank b. Charter Oak Ins. Co. 31 Conn. 517; Maher v. Hibemia Ins. Co., 67 N. T.283. » Maher v. Hibemia Ins. Co., 67 N. Y. 290. 423 § 279 CONSUMMATION OF CONTRACT. they did not intend to express, and which did fail to ex- press that which they did intend to express ; such evidence does make a case for a reformation of the policy so as to conform it to the intentions and purposes of the parties.'" Where there is a mistake or failure to express the intention of the parties, the jurisdiction of equity to reform is un- questioned and has been often exercised. This has beea done where the language of the party who drew the contract failed to adequately or perfectly express the common inten- tion of the parties. As where, in an action to reform a. policy of insurance upon the plaintiff's life, which was ex- pressed to be " for the sole and separate use and benefit of his wife, Lina Goldsmith, but in case of her previous death to revert to the insured," it appeared that the policy wa» drawn by the insurance agent upon general directions by the plaintiff as to its terms, and the plaintiff's intention then was, that the beneficiary named should have the insur- ance, if she was his wife at the time of his death, and that she had since been divorced for adultery. The court held * that the policy should be reformed so as to run for her ben- efit so long as she remained a wife. § 279. When Equity will Relieve if Agent has Acted in Bad Faith. — Where there is bad faith on the part of the agent, or where a policy is written materially differing from the prior agreement of the parties, equity will alwaya interfere. Though the principle has been generally applied to fire insurance contracts, there seems to be no good reason why it should not be applied to cases of life insurances where the facts are analogous. For example, in a case in New York, the plaintiff having an insurance with the defendant of his interest as mortgagee, took another mort- » Many B. Beekman Iron Co., 9 Paige, 188 ; Pitcher v. Hennessey, 48 N. T. 416; McCall v. Ins. Co., 66 N, Y. 605. « Goldsmith v. Union Mut. L. Ins. Co., 18 Abb. N. C. 325. 424 CONSUMMATION OF CONTRACT. § 27^ gage on the same premises and applied to defendant for a renewal of the first policy, with an increase of the insurance to the amount of both mortgages ; this was agreed to, and a new policy was issued, which contained a clause, not in the first policy, to the effect that, in case of loss, the as- sured should assign to the defendant all her right to receive satisfaction from any other person, and that the loss should not be payable until after the enforcement of the original security and defendant should only be liable for so much as could not be collected. This policy was renewed from time to time, and plaintiff did not discover the change untili after a loss. Both mortgages contained the usual insur- ance clause, and it was agreed thereby that the mortgagors- should pay the premiums and have the benefit of the policy in the payment of the debt. In an action to reform the- policy and recover thereon as reformed the court held : ' that the plaintiff was entitled to relief and that it was bad faith on the part of the defendant to so change the terms without notice and to deliver the new as simply a renewal of the old policy. And further, that the negligence of plaintiff in not discovering the change and laches in not sooner seeking relief were only matters making the pro- priety of granting the relief discretionary. In this case the court said: "It was bad faith on the part of the de- fendant to change so radically the terms of the policy and< deliver it as a policy simply renewing the old one, without notice of the change. A party whose duty it is to prepare- a written contract, in pursuance of a previous agreement,, to prepare one materially changing the terms of such pre- vious agreement, and deliver it as in accordance therewith, commits a fraud which entitles the other party to relief, according to the circumstances presented. Equity will re- form a written instrument in cases of mutual mistake, and also in cases of fraud, and also where there is a mistake on. > Hay «. StarF. Ins. Co., 77 N. Y. 235. 425 •^ 279 CONSUMMATION OF CONTRACT. one side and fraud on the other. ^ The negligence of the plaintiff in not discovering the change and laches in not sooner seeking relief, are questions which make the pro- priety of granting relief, in a given case, discretionary. The court below, upon the findings of fact, properly exer- cised its discretion in this case in granting relief. Policies of fire insurance are rarely examined by the insured. The same degree of vigilance and critical examination would Jiot be expected or demanded as in the case of some other instruments." To the same effect is the recent case of Palmer v. Hartford F. Ins. Co.,^ where the plaintiffs held A policy of insurance of the defendants and, on the policy expiring, applied to the defendants for a renewal policy, to be on the same terms with the expiring one, which the de- rfendants promised to give. The defendants wrote and ^ielivered the new policy and received the premium. The plaintiffs, supposing it to be on the same terms with the first, did not examine it until after the loss of the property by fire three months later, when, on reading it, they dis- covered an important variance from the former policy, ma- terially affecting their right of recovery. If they had known •of the change they would not have accepted the policy. In A suit for the reformation of the policy, and a recovery of what would become due under it, it was held that the plaintiffs could not be regarded as guilty of laches in not ■examining the policy and applying earlier for its correc- tion, since they had a right to believe it to be in all essen- tial respects like the former one. After a review of a num- ber of authorities * the court says: "It is a matter of 1 Welles ». Yates, 44 N. T. 525; Rider ». Powell, 28ir.Y. 310 and •cases cited. 2 54 Conn. 488; 4 N. Eng. Eep. 470; 9 Atl. Eep. 248. » Andrews v. Essex Ins. Co., 3 Mason, 10; 1 Story Eq. Jar., § 159; Oliver v. Mut. Com. Ins. Co., 2 Curtis, 277; N. Amer. Ins. Co. v. Whipple, 2 Biss. 419; Phcenix F. Ins. Co. v. Gurnee, I Paige, 278; Wood on F. Ins., § 484; "Van Tuyl c. Westchester F. Ins. Co., 55 N. Y. 657; Nat. 426 CONSUMMATION OF CONTRACT. § 279 ■common knowledge that a policy of insurance against fire, At the present day, is a lengthy contract, which, after speci- fying the main things, namely, the subject, its location, the owner, the amount, the time and the price, embodies very jnany stipulations and conditions for the protection of the underwriter. If a person desiring indemnity against loss applies to the underwriter and states the main things above enumerated, and says no more, he has knowledge that he Jias asked for and will receive a contract which, in addition to those, wUl contain many limiting conditions in behalf of the party executing it ; and when he receives the policy he cannot avoid seeing and knowing that there are many more stipulations in it than were covered by his verbal request. It may well be that a due regard for the rights of others lequires him to examine those stipulations, and express a timely dissent, dr be held to an acceptance thereof. Noth- ing which has previously transpired between him and the underwriter furnishes justification for omission to read them. The underwriter ^as not invited his confidence by any promise as to what the writing shall contain or omit. But if the underwriter solicits a person to purchase of him indemnity against loss by fire, and if they unite by making a written draft of all the terms, conditions and stip- ulations which are to become a part of or in any way affect the contract, and if the underwriter promises to make and sign a copy thereof, and deliver it as the evidence of the terms of his undertaking, and if a material and variant con- dition is by mistake inserted, and the variant contract is delivered, and the stipulated premium is received and re- tained, the court will not hear the claim that he is entitled to the benefit of the variant condition, where the other party had neither actual nor imputed knowledge of the change. In his promise to make and deliver an accurate Trader's Bank «. Ocean Ins. Co., 62 Me. 519; Buckland v. Adams Exp. Co., 97 Mass. 124; BidweU v. Astor Ins. Co., 16 N. Y. 263. 427 280 CONSUMMATION OF CONTRACT. WUliams v. North German Ins. Co., 24 Fed. Eep. 625; Fink r. Queen Ins. Co., 24 Fed. Rep. 318; Banks o. Wilson, Nova So. Eq. 210. * Home Ins., etc., Co. r. Lewis, 48 Tex. 622 ; Same v. Myer, 93 HI. 271. ' Delaware, etc., Ins. Co. v. Gillett, 54 Md. 219. " Bishop V. Clay, etc., Ins. Co., 49 Conn. 167; Zallee v. Conn. Mut L. Ins. Co., 12 Mo. App. 111. » Steinbach v. Belief F. Ins. Co.. 77 N. Y. 498; 12 Hun, 641; Wash- bum V. Great Western Ins. Co., 114 Mass. 175. M Amazon Ins. Co. v. WaU. 31 Ohio St. 628. 429 § 282 CONSUMMATION OF CONTEACT. the sapine negligence of the party, who slept upon his rights^ until other duties and responsibilities grew up ; * nor if a new contract would be the result, imposing new liabilities on the defendant ; ^ nor unless there was a mutual mistake ; * nor if it appears that no action is maintainable on the policy because of lapse of time ; * nor if the insurer was induced to issue the policy by the false representations of those who claim a benefit under it.* There must be either mutual mistake or fraud.* A policy of insurance cannot be re- formed by parol evidence of mistake on the part of the in- sured alone, nor to the extent of altering a warranty.'^ Courts will not lightly interfere and reform a contract. A» was said by the New York Court of Appeals : * " The power of courts of equity to reform written instruments is one in the exercise of which great caution should be observed. To justify the court in changing the language of the instrument sought to be reformed ( except in the case of fraud) , it must be established that both parties agreed to something differ- ent from what is expressed in the writing, and the proof upon this point should be so clear and convincing as to leave no room for doubt. Losing sight of these cardinal principles, in the administration of this peculiar remedy^ would lead to the assumption of a power which no court possesses, of making an agreement between parties to which they have not both assented."' The presumption is that the contract expresses the will of the parties.*' 1 Snsqnehanna, etc., Ins. Co. v. Swani:, 102 Fa. St. 17. « Sykora v. Forest City, etc., Ins. Co., 2 Cin. L. B. 223. » Durham v. Fire & Marine Ins. Co., 10 Sawy. 526; 22 Fed.Bep. 168. * Thompson v. Phoenix Ins. Co., 25 Fed. Rep. 296. » Spare v. Home Mut. Ins. Co., 9 Sawy. 142; 17 Fed. Rep. 568. * Donlol V. Commercial F. Ins. Co., 34 N. J. Eq. 30. ' Copper t7. Farmers' M. F. Ins. Co., 50 Pa. St. 299; 88 Am. Dec. 644. * Mead v. Westchester F. Ins. Co., 64 N. Y. 455. * Miaghan v. Hartford Fire Ins. Co., 12 Hun, 321 ; Bartholomew »» Mercantile, etc., Ins. Co., 34 Hun, 263. '» Harrison v. Hartford F. lus. Co., 30 Fed. Kep. 862. 430 CONSUMMATION OF CON'TRACT. § 284- § 283. N^o Relief when Liegal Effect of Plain Terms- was Misunderstood. — There cannot be any relief if the party who procured the policy misunderstood the legal effect of plain and onambignoas words, no blame attaching to the other parties thereto. As where a man took out a policy on his wife' s life, payable in f onr years to her, if living ; and if not living to himself. He paid the premiums, retained the policy, and received payments made upon it. She was living at the maturity of the policy, but had filed a petition for divorce. The husband and wife interpleaded for the money. In deciding that the wife was entitled to the fund the court said: ^ " Does the answer of said Volney show a case of fraud or mistake? There is clearly no fraud alleged. We do not think the answer shows a case for relief on the ground of mistake. It does not allege that the policy differs in its terms from what the parties intended. It simply alleges that said Volney supposed it was payable to him, according to its terms, and not to hi& wife, unless he died before it became payable. TTe do not see how he could have possibly supposed so, for he does not allege any ignorance of the terms ; but if he did sup- pose so, he supposed so because he misunderstood the legal effect of plain and unambiguous words. There is ordina- rily no remedy for such a mistake, if the other parties be not to blame, and here no circumstances are alleged to take the case out cf the ordinary rule." * § 284. Application of Foregoing Principles to Benefit Societies. — To what extent equity will aid the defective designation of beneficiary, or reform the certificate when ' JEtna Life Ins. Co. v. Mason, 14 R. I. 583. « Blackburn's Case, 8 De G., M. & G. 177; Rashdall v. Ford, L. R. 2 Eq. Cas. 750; Farley c. Bryant, 32 Me. 483; Dill v. Shahan, 25 Ala. 691; Lannlng v. Carpenter, 4* N. Y. 408; Nelson c. Davis, 40 Ind. 366; Gerald e. Elley, 45 la. 322; Story Eq. Jnr., §§ 113, 116, 137; Kerr on Fraud and M. 409, 428. 4.S1 ■^ 284 CONSUMMATION OF CONTRACT. issued, is uncertain. On general principles the same rules should apply to the contracts of benefit societies as to those of life insurance companies wherever the facts are ^similar. When equity is asked to aid the defective desig- nation, or apparent failure to designate, it might be sug- gested that the case is one of non-execution of a power as distinguished from a trust, and again that there is no priv- ity of contract between a benefit society and the benefi- ■ciary of its member, but neither of these objections would ^e insuperable. There is only one case where the subject was alluded to and there the case was one of evident mistake, for the secretary of the company was in fault. In this case^ the Supreme Court of New Hampshire, said: " The defendant contracted to pay a sum not exceeding $2,000 -as a benefit, upon due notice of the death of Gigar, the • assured, and the surrender of his certificute of membership to such person or persons as he may, by entry on the record book of the association or on the face of this certifi- cate, direct the same to be paid.' The bill alleges, and the demurrer admits, that, at the time he made application for membership, he stated to the association (which means to its proper officer or officers), that it was his intention that the benefit should be paid to the plaintiff, to whom he was then, and at the time of his decease, betrothed. The prayer of the bill is for a reformation of the contract by inserting in the membership certificate the name of the j)laintiff as beneficiary, and that the benefit may be paid her. Section 3 of article 4 of the by-laws makes it the duty of the secretary to keep a record of the members of the association and the persons to whom the relief is to be paid. If the fact is found at the trial term that the par- ties understood direction was given to enter the plamtiff 's name upon the record-book as the beneficiary to whom the 1 Scott V. FroTident Mut. Belief Association, 63 IT. H. 656; 2 N.'Eng. JElep. 286; 4 Atl.Eep. 792. 432 CONSUMMATION OF CONTRACT. § 285 T)enefit was payable, and that Gigar understood that her name would be so entered without further direction from him, it was the duty of the secretary to enter it; and the Accident or mistake was one which equity will remedy. The accident could not be said to have arisen from the neg- ligence or fault of Gigar, so as to preclude relief,^ nor would it be the case of non-execution of a power as •distinguished from a trust, where equity does not afford relief.^ As equity interposes only as between the original ^parties and those claiming under them in privity * objec- tion may be obviated by an amendment joining Gigar' s Administrator as co-plaintiff. She may then prosecute this suit in his name, giving him indemnity, if he requires jt, against costs and expenses. The bill should also con- tain a prayer that the plaintiff 's name may be inserted in the record-book as Gigar's beneficiary." § 285. Jurisdiction of Equity to Decree Cancella- -tion. — In policies of fire insurance, a clause is usually in- serted providing for the cancellation and surrender of the ■contract at the option of either party. Numerous cases have been decided in the courts of this country and of others involving questions relating to the manner of exercising this •option and the time when it becomes effective. It is not jiecessary to refer to these adjudications. Similar stipula- tions in life policies are not so usual and instances of at- tempted rescission are comparatively rare. The jurisdic- tion of equity to decree a cancellation upon proper showing has never been doubted, for insurance contracts, like other writings, may be reformed so as to express the intention of the parties, or in cases of fraud, accident or mistake, be altogether avoided. A broad distinction is made between applications made in the lifetime of the insured, and those 1 story Eq. Jnr., § 105. » Story Bq. Jur., §§ 169, 170. * 1 Story £q. Jar., §§ 105, 1G5. 23 413 § 285 CONSUMMATION OF CONTRACT. that come after the contingency insured against has hap- pened, in the latter event, as we shall see later, it has gen- erally been held that equity will not interfere, because the reasons and facts, relied ,on for cancellation, would be equally available in defense to an action at law upon the contract. As was said by Lord Bacon, " chancery is or- dained to supply the law, not to subvert the law." * In Fenn v. Craig,^ the general rule was laid down that a bill in equity would lie at the suit of a life insurance company to have a policy delivered up to be cancelled on the ground of fraud in effecting the insurance, where the instrument is not void upon the face of it. The court seemed to think, that the plaintiffs had a better equity if they brought their bill in the lifetime of the assured than if they waited until after his decease. The later case of London Assurance v. Man- sel,' was one of concealment, and the Master of the Rolls, did not seem to question the jurisdiction, but alone dis- cussed the point whether there had in fact been a conceal- ment, and whether it was material. The assured had equivocated about his application to other companies for insurance and rejection by them, and the court held that the policy should be decreed to be delivered up, saying that it was a very plain and clear case. In Connecticut Mutual Life Insurance Company v. The Home Insurance Company ,*^^ in the United States Circuit Court of Connecticut, the suit was to cancel a policy that the company had already at- tempted to cancel upon thd ground that the insured had be- come so far intemperate as to impair his health, the policy stipulating that it should be void if this contingency hap- pened. The owner of the contract refused to agree to the cancellation, but continued to tender the premiums. The biU was filed to definitely determine the rights of the par- 1 4 Bac. Works, 488, cited Ins. Co. v. Stanohfleld, 1 Dili. C. C. 431. s 3 Younge & Coll. 216. » 11 Ch. Div. 363. ♦ 17 Blatchf. 142. 434 CONSUMMATION OF CONTRACT. § 285 ties. A demurrer was interposed to the bill and overruled. Two reasons were alleged why the court should sustain the demurrer ; the first was, that while a court of equity has power to cancel instruments which are void by reason of fraud in their inception, it has no jurisdiction to cancel in- struments which have ceased to be binding since their exe- cution; second, that while, at the instance of the assured a court of equity m^y compel an insurance company to rein- state a cancelled contract, equity will not interfere to en- force a forfeitui-e. In passing upon the demurrer Judge Sbipman said: " Upon the first proposition, it is true, that a court of equity has not, or will not, exercise jurisdiction to cancel a contract, merely because it has become void or inoperative by reason of some fact which has taken place since its execution. Such an exercise of power would give a court of equity concurrent jurisdiction with courts of law over all contracts which one contracting party may allege to have been broken by the other.^ But, while relief from the consequences of fraud is peculiarly the province of a court of equity, it has not refused to cancel contracts which have been performed, or which have become inoperative, when the special circumstances of the case rendered it un- just or oppressive that the contract should be an outstand- ing claim against the plaintiff. The reasonable rule is, that a court of equity will exercise its power of set- ting aside contracts for defects not apparent on their face, although such defects arose after the execution of the contracts, m cases where the special circumstances render it inequitable or unjust, or a hardship, to compel the plaintiff to await a suit at law at the instance of the other party .^ Chancellor Kent was inclined to think in Hamil- ^ Thornton v. Knight, 16 Sim. 508. * HamUton c. Cummings, 1 Johns. Ch. 517; Hoare v. Bremiidge,. L. R. 8 Ch. App. 22; Hartford c. Chipman, 21 Conn. i88; Ferguson d» Ksk, 28 Conn. 501. 435 4 285 CONSUMMATION OF CONTRACT. ton V. CummingSji that a court of equity had jurisdiction to fiet aside a bond or other instrument, whether the instru- ment was void for matter appearing on its face, or from the proofs, ' and that these assumed distinctions were not well founded.' He says: 'Perhaps all the cases maybe reconciled on the general principle, that the exercise of this power is to be regulated by sound discretion, asthe cir- cumstances of the individual case may dictate, and that the resort to equity, to be sustained, must be expedient, either because the instrument is liable to abuse from its negotia- ble nature, or because the defense, not arising on its face, may be difficult, or uncertain at law, or from some other special circumstances peculiar to the case, and rendering a resort here highly proper, and clear of all suspicion of any design to promote expense and litigation. If, however, the defect appears on the bond itself, the interference of this court will depend on a question of expediency, and not on a question of jurisdiction.' Second, it is true, that <50urt8 of equity will not aid to enforce a forfeiture, or to divest an estate for breach of covenant or condi- tion subsequent, unless, perhaps, under extraordinary circumstances.'' When an estate has been forfeited, or when a pecuniary penalty has been incurred, by rea- son of the happening of a condition subsequent, or of the breach of a covenant, there is usually an immediate remedy at law to regain possession of the estate or to re- cover the penalty. There being such a remedy equity will not interfere. ' The great principle is, that equity will not assist in the recovery of a penalty or forfeiture, when the plaintiff may proceed at law to recover it.' * In this case, there is no estate to be regained, there is no sum in dam- ages to be recovered. The insured is still living, and a can- 1 1 Johns. Ch. 617. ' Horsburg v. Baker, 1 Pet. 232; Livingston r. Tompkins, 4 Johns. Ch. 415; 2 Story Bq. Jur., § 1819. ' Livingston v. Tompkins, 4 Johns. Ch. 432. 436 CONSUMMATION OF CONTRACT. § 255 cellation of the contract is the only result which is to be attained. The plaintiff has now no remedy at law, and un- less it can resort to a court of equity, it must wait and be- come a defendant at the future suit of the holder of the policy. When such a suit will be commenced is a matter of uncertainty. The rule is not applicable to the cancella- tion of a policy of insurance upon the life of a living per- son." The court then reasons thai the relief should be given because of its expediency and in order to be just to the other policy holders. That the foundation of insui-ance is the law of averages and if the insured are permitted knowingly to indulge in practices that notoriously invite disease the investment of other insured persons is jeopar- dized. The court quotes the language. of Justice Bradley ^ that " the insured parties are associates in a great scheme. The associated relation exists whether the company be a mutual one or not. Each is interested in the engagements of all, for out of the co-existence of many risks arises the law of average, which underlies the wnole business." The objection that the company has already exercised its option of declaring the forfeiture, is disposed of by the answer that it is important for the company to know before the death of the assured whether it has made an error in this action or not. That neither party should be left in doubt during a series of years as to his or its pecuniary rights in the policy. In a later case in the United States Circuit Court of North Carolina ^ it was sought to cancel a policy upon the same ground, the intemperance of the assured, the latter being still living. The court, citing Insui'ance Co. v. Bailey," held that a court of equity would not set aside a policy of life insurance during the life of the assured on the ground that it had been rendered void by something not J N. T. Life Ins. Co. v. Statham, 3 Otto (93 U. S.), 24. > Connecticut Mut. Life Ins. Co. c. Bear, 26 Fed. Rep. 682. » 13WaU.616. 437 § 286 CONSUMMATION OF CONTRACT. appearing on the face of the policy, and which could be proved by extrinsic evidence. That if such power existed it was not a case for the ordinary exercise of the discretion- ary power of a court of equity to order a cancellation, because the assured, who is now intemperate, may reform and live out the ordinary expectation of life. In Home In- surance Co. V. Stanchfield,^ a case that was argued before Judges Miller and Dillon, in the United States Circuit Court in Minnesota, it was said, in the course of discus- sion, that before a loss occurred equity would cancel a pol- icy obtained by false and fraudulent representations of the assured. This, however, would be simplj' an application of the general rule that whenever a contract is obtained by fraud or deception equity wiU decree its cancellation. § 286. The Same Subject: Application to Benefit So- cieties. — It might be an objection to this exercise of equity jurisdiction in the case of the contracts of benefit societies that the latter may expel the member for any fraud, or violation of the terms of the contract, that would justify the interference of a court of equity. The Kentucky Court of Appeals has held ^ that, where the by- laws of the company provide that if the assured misrepresent his habits as temperate, the board of directors, upon hear- ing, may drop his name from membership, the action of the board upon the charge is conclusive and res adjudicata and it cannot be afterwards raised in a suit on the policy after the death of the assured. In Durantaye v. Societe St. Ignace'the court, in a wianrZamws proceeding, held that a member of a benevolent insurance society was rightfully expelled for suppression of the fact that he was laboring under a pulmonary complaint and falsely representing at the time of his admission that he was in good health. 1 2 Abb. C. C. 1; 1 DiU. C. C. 424. s Jones V. National Mut. Ben. Assn , 2 S. W. Eep. 447. * 13 Low. Can. Jur. 1. 438 CONSUMMATION OF CONTRACT. § 287 § 287. Tbe Same Subject: Cancellation After Lioss. — After a loss has occurred a court of equity will not inter- fere to order a cancellation of the conti-act unless some special circumstance exists establishing the necessity of a resort to equity to prevent an injury which may be irre- parable and which equity alone is competent to ayert. It is not sufficient that a defense exists, because it can be set up in an action at law on the policy ,^ nor that the evidence may be lost,^ nor the inconvenience or risk of a reliance upon legal remedies.* In Home Ins. Co. v. Stanchfield,* which was heard before Judges Miller and DiUon in the United States Circuit Court, a bill was filed by an insurance company against the assured to enjoin an action at law on the policy, and to cancel the same because it had been pro- cm-ed by false and fraudulent representations, and the court held that it ought to be dismissed because founded solely upon matters which, if true, are a defense to the action at law, and no matters were shown making a resort to equity necessary or expedient. After a fuU review of the cases. Judge Dillon said: " The cases in the English books show that when bills are entertained, injunctions are refused or -dissolved, thus leaving the real litigation to be had at law. If the verdict is for the policy, of course the bill is dis- missed. If against it, then the bill may be brought to hearing, and the court will, in proper cases, order the policy to be surrendered, an order which, after such a ver- dict, is quite unnecessary and useless. The English cases referred to are not, aS before observed, very satisfactorily reasoned, and are not free from conflict. The old cases are entitled to very little respect as authority, and the modem ones tend to show that equity will not oust the law jurisdic- tion, or interfere with the legal remedies where there is a 1 Globe Mnt. L. Ins. Co. v. Seals, 79 N. T. 205. » Town of Venice v. WoodmfE, 62 N. T. 462. • Fowler v. Palmer, 62 N. Y. 533. * 2 Abb. C. C.l; I Dill. C. C. 421. 439 § 288 CONSUMMATION OF CONTRACT. full defense at law, and no obstacle in the way of making: it. Insurance contracts should stand upon the same foot- ing as other contracts with respect to equity interference* else we have an anomaly in the law without any reason to- justify it." § 288. General Doctrine as to Interference of Equity Stated. — The conclusion from the cases cited in the pre- seding sections is that in all cases arising upon insurance contracts, where the equitable jurisdiction is invoked to reform or cancel, or to give any other relief peculiar tO' courts of chancery, no distinction is to be made between such contracts and those relating to other matters ; but, if relief is granted at all, it must be because of the applica- tion to the facts of the broad and fundamental principles of equity. In other words, it is only when the complainant has no remedy at law, and, because of fraud, accident or mistake, injustice would result if the relief asked were not granted, that a court of equity will exercise its powers and by so doing prevent wrong from being successful. 440 CHAPTER IX. CHANGE OF BENEFICIARY: ASSIGNMENT. § 889. The Subject of this Chapter. 290. Appointments Under BDwers: when Bevocable. 391. Besi^iation of Beneflciaiy is an Act Testamentsiy in its Charac- ter. 293. Vested Bights of Payees in laf e Insniance Conqtanies. S93. Opposing Authorities. 294. Wife's Policy. 293. When the Policy cannot be Assigned or the Beneficiary Changed. 296. When the Policy has not Passed out of Control of Par^ Effect- ing it 297. Assignabili^ of life Insurance Policies. 298. Assent of Insurer to Assignment. 299. Effect of Assignment. 300. Assignment after Iass. 301. Assignment by Wife of Policy on Husband's Idfe when Wife dies before the Husband: Rights of Creditor of Wife. 302. The Question of Insurable Interest as Afieclang the Validity of Assignments of laf e Policies. 303. Validity of .Assignment, how*Determined; Amount of Recovery by Creditor and Assignee. 301. Distinctions Between Certificates of Beneficiary Societies and Policies of Life Insurance in Respect to Assignment or Change- of Benefidaiy. SOS. Development of the Law Concerning Change of Beneficiary. 306. Present Doctrine. 307- Change of Beneficiary must be in Way Prescribed by the Laws of the Society. 308. The Opposing View. 309. When an Attempted Change of Beneficiary becomes Complete. 310. Jurisdiction of Equity in Aid of Imperfect Change of Beneficiary. 311. Change of Designation Governed by Same Rules in Respect to Beneficiary as Original Appointment. 312. Ri^ts of Creditors in Benefit. § 289. The Snbject of this Chapter. — The distinctioiia between the beneficiary orders, or societies, and the regular 441 § 289 CHANGE OF BENEFICIART : ASSIGXJIElTr. life insurance companies no where appear more plainly than when we consider the rights of the beneficiary named in the certificate or poKcy. This is because of the fundamental differences in the contracts of these two classes of organi- zations which we are about to discuss in this place. In a policy of life insurance the undertaking is vith the assured and the stipulated sum is payable to him upon the contin- gency named, — the ending of the life insured. Owing to the form of the contract the rights of the person to whom the insurance is to be paid become at once Tested when the policy is delivered and cannot be altered or affected except by his consent.^ The member of a beneficiary organiza- tion, on the other hand, as we have seen,* has no property interest in the benefit, but only the naked power of desig- nating some one to receive it. This designated recipient ^Iso has no property, nor vested rights, in the benefit bo- cause his interest is contingent and uncertain, the power of the member to revoke the appointment and substitute a new beneficiary being specially reserved by the laws of the so- ciety, which laws enter into and form a part of the con- tract.* It is, however, of course possible for an insurance policy to contain a power of substitution, or revocation of appointment, and also for the contract of a benefit society to stipulate unconditionally that the beneficiary shall not be changed. But such stipulations are unusual. It is seen, therefore, that everything depends upon the terms of each contract. In this chapter we shall consider the right of the member of a benefit society to change the bene- ficiary named in his certificate; the interest which the beneficiary has in the benefit, or the assured has in a life insurance policy ; and the assignability of certificates and policies. 1 Post, § 292. > Ante, §§ 236, 237. * 4nt«,'§ 161. 442 CHANGE OF BEXKFICIARY : ASSIGNMENT. § 291 § 290. Appointments under Powers, when Kevoca- l»le. — Ordinarily, appointments under powers are revoca- ble. In Sngden on Powers * it is said : "A power to appoint includes in itself a power to revoke ; and a power to do an act which can only be effected by an appointment, author- izes an appointment and, therefore, a revocation." In legard to real property Washburn says: "It should be understood, that, when the donee of a power intends to revoke the uses he appoints, he should expressly reserve this right in the deed executing the power. If such reser- vation be not made, the appointment cannot be revoked; and this is especially true where the power has been executed upon receiving a valuable consideration," ^ Wills -are in their own nature always revocable and, therefore, where the power is executed by a will, an express power of revocation need not be inserted, but it may be revoked, and the original power re-executed todes quoties.^ "The re- sult of the authorities as to deeds (and the like observa- tions apply to other instruments inter vivos) executing instruments appears to be : 1. That in a deed executing a power, a power of revocation and new appointment may be reserved, although not expressly authorized by the deed creating the power, and that such powers may be reserved totieg quoties. 2, That where an appointment under a power is made by deed it cannot be revoked, unless an ex- press power be reserved in the deed by which the power is executed ; a revocation will not be authorized by a general prospective power in the deed creating the first power.* § 291. Designation of Beneficiary is an Act Testa- mentary in its Character. — The designation of a benefic- iary by a member of a benefit society is an act testamentary » Vol. 1, p. 238 (ed. 1856). ' 2 Washb. on Eeal Prop. 330. ' Sngden on Powers, Vol. 1, p. 462. -• Sugden on Powers, Vol. 1, p. 402. 443 § 292 CHANGE OF BENEFICIART : ASSIGNMENT. in its character and the same rules of construction apply- as in the case of other testamentary writings.' In con- sidering the validity of changes of beneficiary the courts have evidently been influenced by this fact. If, however,, the certificate refer to the laws of the society, and these- authorize the substitution or change of beneficiaries, it seems plain that the case is one where under the compact, the right of revocation of the appointment is secured, and' this right is again reserved in the instrument executing the- power, so that no question should arise touching its val- idity.s § 292. Vested Rights of Payees in Lilf e Insurance Pol- icies. — When a policy of insurance is taken out payable to some other person than the assured, the beneficiary ordinarily has a vested right in the policy and its proceeds^ consequently the assured cannot in any way control or dis- pose of the policy. A leading writer on the subject says : * " We apprehend the general rule to be that a policy and the money to become due under it, belong the moment it is- issued to the person or persons named in it as the beneficiary or beneficiaries, and that there is no power in the persoa procuring the insurance, by any act of his, by deed or by will, to transfer to any other person the interest of the per- son named. An irrevocable trust is created. * • • The legal representatives of the insured have no claim upon the money, and cannot maintain an action therefor, if it is- expressed to be for the benefit of some one else." And this statement is cited and approved by the Supreme C!oart ' Dnvall V. Goodson, 79 Ky. 228; Washington, Ben. Endowment Assn. V. Wood, 4 Macfcey, 19 ; ContlDental Life Ins. Co. v. Palmer, 43 Conn. 64; 19 Am. Rep. 530; Union Mnt. Aid Assn. s. Montgomeiy (Mich.), 38 N. W. Eep. 588; 14 West. Kep. 877; Thomas v. Leake, 67 Tex. 469; 3 S. W. Bep. 70S; National American Assn. v. Eirgin, 28 Mo. App. 80. » Ante, § 266. * Bliss on Life Ins., § 318 444 CHANGE OF BENEFICIARY: ASSIGNMENT. § 292 ■of Indiana.^ In a case arising in Massachusetts, where, in pursuance of an understanding with the mother of the in- jured, he took out a policy payable to her, but, upon his subsequent marriage, surrendered it and received a new one payable to the wife, it was held that the mother's rights were not affected. In this case^ the court, said: "There appears to have been a full understanding' between him ( the assured) and his mother that the policy was to be taken out :for her benefit, and afterwards that it had been so done. In point of fact, it was made payable to her, and this was done with the intention of giving to her the benefit of it. This constituted a valid settlement in her favor. Nothing remained to be done by him to complete it. He might, indeed, afterwards fail to pay the annual premiums. This, however, does not prevent it from being a good trust. An imrevoked trust is valid, even though there is an express -power of revocation.^ In this case the assured reserved to himself no power of revocation, or of changing the ben^ eficiary. It is true that he entered into no obligation to continue to pay the premiums ; but the omission to do this did not have the effect to give to him an implied power of revocation. His mother might herself continue the pay- ment of the premiums. Moreover, by the terms of the policy, after payment of two full annual premiums, it would not lapse, and certain valuable rights would still ■exist under it. Under these circumstances the assured could not legally surrender the policy without his mother's •consent, and her rights are not affected by such surrender. This seems to us to be the true rule, and it is supported by the weight of authority." * 1 Harley v. Heist, 86 Ind. 196; 44 AoLBep. 289; Holland v. Taylor, 111 Ind. 121, ' Pingrey v. National Life Ins. Co., 144 Mass. 881; 11 N. East. Rep. ■6t2; 4 N. Eng. Bep. 229. " Stone V. Hackett, 12 Gray, 227. * Chapin v. FeUowe8,36 Conn. 132; 4 Am. Eep. 49; Lemonu. Phoenix 445 § 294 CHANGE OF BENEFICIARY: ASSIGNMENT, § 293. Opposing Authorities. — There is a class of case» in which it has been held that after the death of a wife, to- whom a policy of insurance upon the husband's life was made payable, he may surrender it and take a new one for the benefit of another person. The reasons for these de- cisions are yarious, such as the supposed intention,* want of insurable interest in the personal representatives of the deceased wife,^ and other reasons more or less cogent.' But in all these the principle of vested rights under a con- tract seems to be lost sight of, or some clause in the con- tract exempted it from the general rule, and they are, therefore, against the current of authority, except those cases where, from a construction of the policy, some power was reserved to the insured to change the beneficiary. § 294. Wife's Policy. — In pursuance of this doctrine of the vested rights of the beneficiary of a life insurance policy, it has been held that, when the wife is the beneficiary and the husband survives her, the property descends to her representatives as other personalty. Thus, where the de- ceased insured his life in favor of his wife, who died in- testate in his lifetime, leaving an only child and then the Ins. Co., 38 Conn. 294; Femdon v. Canfleld, 104 N. Y. 143; 10 N. East, Eep. 146; 6 Cent. Rep. 203; National Ins. Co. v. Haley, 78 Me. 268; Barry o. Brune, 71 N. T. 261; Landrum v. Knowles, 22 N. J. Eq. 694; Manhattan, Ins. Co. a. Smith, 44 Ohio St. 156 ; Ricker r. Charter Oak Ins. Co., 27 Minn. 198; 38 Am. Rep. 289; Weston ». Richardson, 47 L.T. (n. s.) 514; Kimball V. Oilman, 60 N. H. 54; City Savings Bankc. Whittle, 63 S. H. 587; Allis c. Ware, 28 Minn. 166; Olmstead v. Masonic Ben. Soc. 37 Kan. 93; 14 Pac. Rep. 449; Wilmaser v. Continental Life Ins. Co., 66 la. 417; Gonld V. Emerson, 99 Mass. 154; Waldrom v. Waldrom, 76 Ala. 285; Drake t. Stone, 58 Ala. 133; Pilcherc.N. Y. Lifelns. Co., 33La. Ann. 322; Packard V. Conn. Mnt. Life Ins. Co., 9 Mo. App. 469; Southern Life Ins. Co. v. Booker, 9 Heisk. 606; StUlwell v. Mut. Life Ins. Co., 72 N. Y. 385. 1 Blckerton v. Jacques, 28 Hun, 119. ' Gambs v. Covenant Mut. L. Ins. Co., 50 Mo. 44. ' Foster v. Gile, 50 Wis. 603; Clark v. Durand, 12 Wis. 223; Roberta V. Roberts, 64 N. C. 695; Kerman a. Howard, 23 Wis. 108. 446 CHANGE OF BENEFICIARY : ASSIGNMENT. § 294 husband died intestate and insolvent, the child surviving, it was held that the proceeds of the policy were, under the intestate laws of Pennsylvania, to be distributed, share and share alike, between the child and the representatives of the husband.^ In Olmstead v. Keys et al.* the policy was payable to the trustee of a wife and after her death her husband married again and had the policy changed so as t(y be payable to his second wife. The husband afterwards died, leaving several children by his first and one by his second wife. The Court of Appeals of New York held that the widow was entitled to the proceeds and applied the common-law right of the husband surviving his wife to her choses in action which he might reduce to possession.^ In the case of benefit societies, where the right is reserved to the member to control and dispose of the benefit at all times, if the certificate is made payable to the wife and she die before her husband her interest will be held to have terminated at her death,* and under some conditions his representatives will have the preference over hers, as where such appears to have been the intent,^ and where the certi- ficate was payable to the wife "or her legal representa- tives " and she died before the husband it was held by a divided court' that the trust was intended for the wife alone and upon her death resulted to the husband, upon the principle that where the object of the trust fails there is a resulting trust to the grantor. The words legal represen- tatives were held to have no signification different from 1 Anderson's Estate, 85 Pa. St. 202; United Breth. Mut. Aid Assn. v. Miller, 107 Pa. St. 162. " 85 N. Y. 593. ' See also Continental L. Ins. Co. v. Hamilton, 41 Ohio St. 274 ; Lee v. MniTell, 7 Ky. Law Rep. 598; Cole v. Knickerboclier L. Ins. Co., 63 How. Pr. 442. ■• Richmond v. Johnson, 28 Minn. 447; Tafel v. Knights of the Grolden, Rule, 12 Cin. L. Bnl. 35. ' Expressmen's, etc., Soc. v. Lewis, 9 Mo. App. 412. • Washington, etc., Assn. v. Wood, 4 Mack. 19. 447 ■f 295 CHANGE OF BENEFICIAKT : ASSIGNMENT. that which is attributable to those words generally, viz. : persons appointed either by will or by the law to administer upon the estate of a deceased. Under special circum- stances the proceeds of a policy upon the husband's life payable to the wife who dies before her husband will be divided between his estate and hers.' Generally, the ques- tion is one of Construction of the policy and an application of the statutes governing descents, or governing the dispo- .aition of policies payable to the wife.* Under some circum- stances evidence of intent will be admissible and control the disposition, as where a policy of insurance was in the name of a wife on the life of her husband and the amount was payable to the wife, her executors, administrators or assigns, if she survived her husband; otherwise to their ■children for their use or to their miardian if under age. T?he wife did not survive her husband, and the only child was one by adoption who was of .age. It was held' that the children were the sole beneficiaries and the policy was payable to them and that as the only child was one by adoption and the circumstances showed that the parties in- tended that he should be included in the benefits of the policy, he was entitled to all the proceeds of such policy. § 295. When the Policy cannot be Assigrned or the Beneficiary Changed. — If the policy provides expressly that no assignment thereof shall be made, the stipulation is binding upon the parties.* Where the laws of a benefit as- ' Estate of Balz, 12 PhUa. 29; National Life Ins. Co. v. Haley, 78 Me. 268. - Continental Life Ins. Co. v. Webb, 54 Ala,. 688; Drake v. Stone, 58 Ala. 133; Feam o. Ward, 65 Ala. 33; Fletcher v ColUer, 61 6a. 653; •Conn. M. Life Ins. Co. v. Fish, 59 N. H. 126; Noiris v. Massachusetts M. L. Ins. Co., 181 Mass. 291; Troy v. Sargent, 132 Mass. 408; In re Adams Policy Trusts, 23 Ch. Div. 525; In re Mellor's Policy Trusts, 6 Ch. DiT. 127. ' Martin c. Mtna. L. Ins. Co., 73 Me. 25. * Unity M. L. Ass. v. Dugan, 118 Mass. 219. 448 CHANGE OF BENEFICIARY : ASSIGNMENT. § 296 sociation provide that the benefit shall be paid to the person named in the application of the member, and no provision is made for a change of beneficiary, the rights of the latter -are vested and cannot be affected by any act of the member.^ In one of these cases * the Supreme Court of Indiana says : -" We can see no way to avoid the conclusion that this char- ter provision requires the benefit to be paid to the person named in the application, or to those specified in the case •of the death of those persons, or of some occurrence mak- ing it impossible to pay to them. Not only does the char- ter in direct terms declare that the benefit shall be paid to the persons thus named, but it also declares that if it be- comes 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 possible classes of beneficiaries, those jiamed 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 ' otherwise becomes impossible.' " § 296. "WTien the Policy has not passed out of Control ■of Party effecting It. — If the party who procures and pays for a policy of life insurance, which is by its terms payable to a third party, retains possession of the policy, he may generally surrender it, or revoke the designation of ' Kentacky Masonic M. L. Ins. C!o. c. Miller, 13 Bush, 489; Gibson ■c. Ky. Grangers, etc., Soc., 8 Ky. L. Rep. 520; Ky. Grangers, etc., Soc. v. Howe, 9 Ky. I-aw Kep. 198; Olmstead v. Masonic Mut. B. Soc, 37 Kan. «3; U Pac. Eep. 449; Basye v. Adams, 81 Ky. 368; Presbyterian Ass. Fund ». Allen, 106 Ind. 593; Grand Lodge v. Eisner, 26 Mo. App. 108; Thomas b. Leake, 67 Tex. 469; 3 S. W. Rep. 703. * Presbyterian AfiS. Fund v. Allen, 106 Ind. 593; 4 West Rep. 712; 7 :N. E. Rep. 317. 29 449 § 296 CHANGE OF BENEFICIARY: ASSIGNMENT. beneficiary and appoint a new person to receive the pro- ceeds. In one case, one Peterson obtained a policy on hia own life payable to himself, but afterwards surren- dered it and had a new one issued payable to his betrothed,^ which he gave to her brother for her and so told her.^ Afterwards he obtained the policy, surrendered it and had a new one issued payable to a creditor, and then died. The Supreme Court of Connecticut, in holding the lady to whom the insured was betrothed entitled to the proceeds, said: ^ " It is not claimed that the mere, fact of making the policy payable to Miss Lemon, without more, vested in her a complete title. It is conceded that so long as Mr. Pe- terson retained it in his own possession, he might control it as his own. On the other hand it is not doubted that if Mr. Peterson delivered it to Miss Lemon as a gift to her, such delivery would vest in her a complete title." This view has obtained in other cases. ^ In a New York case* the constitution of a benefit society provided for a fund to- be paid upon the decease of a member to his widow or minor children ; afterwards this law was changed so as to- allow the member to designate his beneficiary. The mem- ber, under the new law, although he had belonged to the society from the first, and under the new constitution as^ well, designated a woman with whom he was living, de- scribing her as his "wife." The claim was made by the society in defense to an action by the beneficiary, that thfr plaintiff was not the widow of the deceased and had not been designated as ' the beneficiary in accordance with the constitution of the society. In giving judgment for the plaintiff the court said : " The case seems to me to be sim- ' Lemon v. PhcEnix Mut. Life Ins. Co., 38 Conn. 301. 2 Penn. Mut. Ins. Co. v. Watson, 3 W. N. C. 513; Weston v. Eiehard- 8oii,47L.T. 614; Garner b. Germania Life Ins. Co., 13 Daly, 266; 17 Abb. N. C. 7; Johnson v. Van Epps, U Bradw. 201; 110 111. 651. But see GlanzB. Gloeckler, 10 Bradw. 484 ; 104 111. 573. 8 Durian v. Central Verein, etc., 7 Daly, 170. 450 CHANGE OF BENEFICIARY : ASSIGXMENT. § 296 ply this': the title of Catharine Durian (the true wife) is not protected by the statutes, of the State. If she be entitled to the insurance money, it must be because of a contract made between Philip Durian and the defendant, which it was out of their power afterwards to vary, because she had an interest in it which it would be unjust and unlawful to impair. What interest had Cathaiine in it? Why could it not be modified by the parties who made it? The counsel of the defendant has not shown. Conced- ing that Philip intended, at first, that she should receive the insurance money, he had a right to change the direction in which the money should go at any time before he had actually placed in her hands, or beyond his own control, the means of enforcing her claim to the money. ^ It was competent, in my opinion, for Philip and the Verein to modify their agreement in any manner satisfactory to both parties. It was competent for Philip, with the consent of the Verein, to name a beneficiary other than his wife, even though his wife were present. The amended constitution, to which he assented, formed a new contract between him and the Verein, under the terms of which he was at liberty to choose whom he pleased as appointee. He named Barbara, the plaintifE." This was followed in a later case in the same State.^ If the policy expressly covenants that upon the decease of the beneficiai'y the insured may substitute any other, this stipulation controls, but the option must be exercised within a reasonable time after the death of the first beneficiary. Such substitution cannot be made by wUl, nor after the payment of the next ensuing premium. The payment of each premium, so to speak, makes a new contract.^ 1 Lemon c. Phoenix L. Ins. Co., supra. ' Deady v. Bank Clerks', etc., Assn., 17 Jones & Sp. 246. ' Eiseman v. Judah, 1 Flip. 627. See same case and note in 4 Cent. L., Jonr. 346; Roberts v. Koberts, 64 N. C. 695; Eobinson v. Duvall, 79 Ky.. 84. 451 § 298 CHANGE OF BENEriCIART : ASSIGNMENT. § 297. Assignability of Life Insurance Policies. — At common law policies of fire or life insurance were not as- signable, but the assignee could sue in the name of his assignor.^ The assignee, however, could sue in equity, bat latterly it was considered that the right at law was adequate and complete.* Life insurance policies are said to be ohoses in action and may therefore be assigned by indorse- ment and delivery,' and a mere verbal assignment with de- livery is sufficient,* and so very informal assignments have been held sufficient to vest in the assignee the equitable right to the proceeds.* It is not always necessary that de- livery be made ; any act carrying out the intention of the insured and communicated to the insurer is enough in equity.' But generally to make a valid assignment there must be a delivery of the policy.' § 298. Assent of Insurer to Assignment. — It has been said that the reasons requiring the assent of the under- writer to make assignments of tire insurance policies valid do not apply to cases of insurance upon human lives.* Where the assent of the insurer to an assignment was re- 1 Jessel V. Williamsburg Ins. Co., 3 Hill, 88 ; Palmer v. Merrill, 6 Cash. 282; 52 Am. Dec. 782 ; Hobbs v. Memphis Ins. Co., 1 Sneed, 444; May on Ins. § 377. ' Carter v. United States Ins. Co., 1 Johns. Ch. 463. ' Bushnell ». Bushnell, 92 Ind. 503; Hutson o. Merrifield, 61 Ind. 24; 19 Am. Eep. 722; Harley v. Heist, 86 Ind. 196; 44 Am. Bep. 285. * New York Lite Ins. Co. v. Flack, 3 Md. 3*1; 56 Am. Dec. 742; Pierce e. Fire Ins. Co., 50 N. H. 297; Powles v. Innes, II Mee. & W. 10; Chap- man V. Mcllwrath, 77 Mo. 38; Manning v. Bowman, 3 Nova Scotia Dec. 42. ' Scott V. Dickson, 108 Pa. St. 6; Greene v. Bepnblic Fire Ins. Co., 84 N. Y. 572. *■ Marcns v. St. L. M. L. Ins. Co., 68 N. Y. 625; Fortescue v. Bamett, 3 Myl. & K. 36; In re Trough, 8 Phila. 214; Chowne v. Bayliss, 31 Beav. 351. ' Ballon V. Gile, 50 Wis. 614; Dexter Savings Bank v. Copeland, 77 Me. 263. » New York Life Ins. Co. v. Flack, 3 Md. 341; 56 Am. Dec. 742. 452 CHANGK OF BENEFICIARY : ASSIGNMENT. § 299 quired by the policy, but there was no provision that an assignment without the consent of the company should avoid it, a parol transfer with delivery was held valid .^ Where the assent of the company to an assignment is ex- pressly required, such a stipulation is valid and will be en- forced, and must be obeyed like any other condition. This assent may be given by the secretary, or any other person who is held out to the public as having the requisite au- thority, and may be in any form.^ This assent is a matter between the company abd the person asserting the claim under the policy, and consequently an assignment may be good between the parties, although the assent of the com- pany is required by the terms of the contract and has not been obtained.^ If the assignment is good under the law of the place where made it is good everywhere,* and the consent once given cannot be withdrawn * unless given un- der a mistake or because of misrepresentation.* A general assignment of all insurance policies, where the assignor has some which are assignable, and aome not, will not carry those which are not assignable nor such as would be made void by assignment. The general words of an assignment are restrained by the particular words creating the subject of the assignment.' § 299. Effect of Assignment. — The effect of an as- signment of a policy with the consent of the insurer is to place the assignee in the same condition and position with 1 Marcus v. St. I/jms'Mnt. L. Ins. Co., 68 N. Y. 625. * May on Ins., § 333. ' Marcus v. St. L. Mut. Life Ins. Co., 68 N. Y. 625; Lee v. Murrell, 9 Ky. L. Eep. (Ky. Superior Court) IM. ' Lee V. Abdy, 17 Q. B. Div. 309. * Grant 17. Ins. Co., 75 Me. 208. * Eastman v. Carrofl Co., etc., 46 Me. 307; Merrill v. Farmers', etc., Ins. Co., 48 Me. 285. ' Armstrong v. Mutual Life Ins. Co., 11 Fed. Kep. 573; Lazarus «. Commonwealth Ins. Co., 19 Pick. 81. 453 § 299 CHANGE OF BENEFICIARY : ASSIGNMENT. respect to all rights and liabilities under it, that the insured occupied before the transfer. It amounts only to the sub- stitution for the assured of the assignee as a party to the policy ; it is the same as a re-issue of the policy to another party upon precisely the same terms and conditions as in the original.^ The assignee can only take that which the assignment gives him,^ nor can the transfer be attacked when the company does not object.^ An assignment 6b- tained by fraud will be set aside in proper equitable pro- ceedings for that purpose * and it has been held that an as- signor of insurance policies may maintain an action recover the policies or their value on the ground that he was inca- pacitated by drunkenness to make the assignments, without first having the assignments set aside by a suit in equity.* An assignment once made cannot be revoked if it is com- pleted by delivery,* equity having no jurisdiction in such cases ; but it will be set aside if made in fraud of creditors.' The rights of creditors, however, in life insurance policies carried or assigned by the debtor depend largely upon the statutes of the place where the assured resides.* The ex- emption of life insurance from the demands of creditors apply to policies issued by a foreign as well as a domestic insurance company.* Where a policy is wrongfully surren- dered the rights of the beneficiary attach to the substituted policy.^" 1 Ins. Co. V. Garland, 108 111. 220, 9 Bradw. 571; Harley o. Heist, 86 Ind. 196. » Diftenbach v. Vogeler, 61 Md. 376. » DifEenbach v. Vogeler, supra. * Collins V. Hare, 2 Bligh (n. s.), 106. " Bursinger v. Bank of Watertown, 67 "Wis. 75; 30 N. W. Bep. 290. • Crittenden v. Phoenix Mut. L. Ins. Co., 41 Mich. 442. 7 .Xtna Nat. BK. v. Manhattan L. Ins. Co., 24 Fed. Bep. 769. 8 Pullis B. Eobison, 73 Mo. 202; Cole v. Marple, 98 lU. 58; Thomp- son V. CundifE, 11 Bush, 567; Baron v. Brummer, 100 N. Y. 372; Stig- ler V. Stigler, 77 Va. 163; Ex parte Dever, 18 Q. B. Div. 660. » Cross V. Armstrong, 44 Ohio St. 613. 1° Chapin c. Fellowes, 36 Conn. 132 ; Lemon v. Phoenix Mut. L. Ins. 454 CHANGE OF BEXEFICIAEY : ASSIGNMENT. § 301 § 300. Assignment After Lioss. — A provision in an in- surance policy avoiding it in case of its assignment without the consent of the company, applies only to an assignment made before a loss.* Assignment after loss passes the legal title and invests the assignee with the exclusive right to sue upon it. In his hands, however, it is subject to every de- fense which could have been set up against it in the hands ■of the previous owner before notice of the assignment was ^ven -to the company. The fact that the assignment was made as a collateral sefturity for a debt will not vary the rule.* An assignment of an insurance policy made before loss, but not delivered until afterwards, does not take ef- fect until delivery and then is the assignment of a money demand against the insurers.* A provision in a policy of £re insurance that the same shall not be assigned after the money thereon becomes due is void, being inconsistent with the covenant of indemnity and contrary to public policy.* § 301. Assignment by Wife of Policy on Husband's liife. — In cases where a policy of life insurance on the liusband's life has been made payable to the wife, her power to assign has often come in question. The decisions of the courts upon this subject have not been uniform, for Co., 38 Conn. 294; Singer b. Charter Oak Ins. Co., 22 Fed. Eep. 774; CTnion Mat. L. Ins. Co. v. Stevens, 19 Fed. Rep. 671; StlUwell v. Mut. L. Ins. Co., 72 N. Y. 385; Whitehead o. N. Y. Life Ins. Co., 102 N. Y. 143, reversing 33 Hnn, 425; Timayenis v. Union Mat. L. Ins. Co., 22 Blatchf. 403; 21 Fed. Bep. 223. 1 Dogge V. Northwestern, etc., Ins. Co., 49 Wis. 601; Roger WJUiams, «tc., Ins. Co. V. Carrington, 43 Mich. 252; Combs v. Shrewsbnry, etc., Ins. Co., 32 N. J. Eq. 615. 2 East Texas F. Ins. Co. v. CoSee, 61 Tex. 287; Perry v. Ins. Co., 25 Ala. 360; Archer v. Ins. Co., 43 Mo. 434; Wetmore e. San Francisco, etc., 44 Cal. 294; Carter v. Ins. Co., 12 la. 292; N. Y. L. Ins. Co. v. Flack, 3 Md. 34l' * Watertown Ins. Co.*. Grover, etc., Co., 41 Mich. 131. * Alkan v. N. H. Fire Ins. Co., 53 Wis. 136; Spare v. Home Mut. Ins. Co., 9 Sawy. 142; 17 Fed. Kep. 568; Goitc. Ins. Co., 25 Barb. 189; West Branch Ins. Co. v. HeUenstein, 40 Fa. St. 289. 455 § 301 CHANGE OF BKNEFICIART : ASSIGNMENT. in many States statutes exist regulating to a greater or less extent the rights of the wife, and the conclusions of the judges have been influenced largely by the provisions of these statutes and the supposed policy of the law. One of the leading cases on the subject is Eadie v. Slimmon/ where the Court of Appeals of New York held that a policy of life insurance, payable to the wife for her benefit, and that of her children in case of her death, could not be transferred BO as to divest the interest of the wife or her children. This was under the supposed effect of the statute of the State which distinguished between a policy of life insur- ance payable to the wife and an ordinary chose in action. The court said : " The provision is special and peculiar, and looks to a provision for a state of widowhood, and for or- phan children ; and it would be a violation of the spirit of the provision to hold that a wife, insured under this act, could sell or traffic with her policy as though it were real- ized personal property or an ordinary security for money." * But this reasoning was held not to apply to an endowment policy under a later statute authorizing a transfer of a life insurance policy by a married woman with the consent of her husband.* The wrongful assignment of the policy i* voidable at the wife's option.* The fact that the assign- ment was made without the State does not affect it if the contract of insurance was made in the State.' The Supreme Court of Connecticut * while inclined to adopt the view of the New York court, seemed to believe that if the wife paid the premiums on the policy out of her own estate 1 26 N. Y. 9. ' Wilson t>. Lawrence, 76 N.Y. 585, 13 Hnn, 238; Barry ». Equitable- Life Ass. Soc, 59 N. T. 587. » Brnmmer v. Cohn, 86 N. Y. 11; 9 Daly, 36; 58 How. Pr. 239; 6 Abb. N. C. 409, 57 How. Pr. 386; Dejonge v. Goldsmith, 14 Jones & Sp. 131. * Frank 17. Mutual Life Ins. Co., 102 N. Y. 266, modifying 12 Daly, 267. 5 Mutual L. Ins. Co. v Terry, 62 How. Pr. 325. But see Bloomingdate V. Lisberger, 24 Hun, 355. « Connecticut Mut. L. Ins. Co. v. Burroughs, 34 Conn. 305. 45t> CHANGE OF BENEFICIARY : ASSIGNMENT. § 301 that would materially inflaence the case, for she ought un- der those circumstances to have the same right to dispose of a life insurance policy as any other chose in action. The assignment of a life policy on the husband's life by the- wife as a security for his debt has been held void uiider a statute forbidding the wife to become surety for her hus- band,^ and the wife's assignments have often been avoided when made nnder duress or undue influence,^ or obtained by fraud,* or if made have been released under principle* of law applicable to sdreties, as by extension of time of payment of the debt without her knowledge.* Under a statute of Georgia it has been held by the Supreme Court of that State that the wife cannot assign to a creditor of the- husband a policy on the latter' s life, nor without other con- sideration ratify the assignment after his death.^ It has- been held that the statutes of New York in force at the time of the assignment * did not apply to policies made payable- to the wife " or her assigns." ' A policy of insurance upon the life of the husband for the benefit of the wife, may be pledged as collateral security by her for the debt of the husband or assigned by her absolutely, unless pro- hibited by local statute, the policy being a writing oblig- atory for the payment of money and assignable at law as- well as equity. " This," says the Supreme Court of Col- orado,* " is, we think, settled by the great weight of authority." * The policy may be assigned by the wife by » Stokell V. KimbaU, 59 If . H. 13. » Conn. Mut. Life Ins. Co. c. Westerrelt, 52 Conn. 586; Whltridge v.. Barry, 42 Md. 140; Barry v. Brnne, 71 N. Y. 261; 8 Hon, 395; Barry ». Equitable Life Ass. Soc, 59 N. Y. 587. » McCntcheon's Appeal, 99 Pa. St. 133. • Allis V. Ware, 28 Minn. 166. ° Smith V. Head, 75 Ga. 755. • 1868. » Robinson ». Mut. L. Ins. Co., 16 Blatchf. 194. • CoUins et al. Brosaxd v. Marsonin, 17 Low. Can. Jur. 270; Yilbon v. Same, 18 Id. 249. * Qneb. 33 Vic. c. 21. * Crosby v. Stephan, 32 Hnn, 478. < Mnt Life Ins. Co. v. Allen, 138 Mass. 31. < Ashley v. AsUey, 3 Sim. 149. 459 § 302 CHANGE OF BENEFICIAKT : ASSIGNMENT. in New York, where a similar statute exists.^ It has been decided in New York that insurance on a life in which the assured has no interest is void at common law, and that the statute of 14 Geo. m., c. 48, so far as it prohibits such insurance, is a declaratory act.* In Rhode Island, in a well considered case, decided in 1877, a sale and assignment of a policy of life insurance to one who had no interest in the life, made, not as a contrivance to circumvent the law, but as an honest and bona fide transaction, was held valid.' Im Cunningham v. Smith,^ a person took out an insurance on^ his own life, and paid for it with the money of the defend- ants, intending to assign the policy to the defendants, and did so assign it. The assignment was sustained. The court say that the defendants may have had such an interest in the life insured as would have entitled them to insure his- life in their own name, although this was doubtful; bufe that the assured had an interest in his own life, ' and if he was willing to insure himself with their money and then assign the policy to them, there is no principle of law which can prevent such a transaction.' This transaction is ob- viously more open to objection than the assignment of the interest in a valid subsisting policy. In ^tna Ins. Co. v. France,' a brother procured an insurance on his life for the benefit of his married sister, who was in no way dependent upon him. It was held to be valid, and that it was imma- terial what arrangement was made between them for the payment of the premium. In delivering the opinion of the court, Mr. Justice Bradley, referring to the case of Con- necticut Ins. Co. V. Schaefer,* in which he delivered the 1 St. John «. American Ins. Co., 13 N. Y. (8 Kern.) 31; Valton «, National Pnnd Ass. Co., 20 N. Y. 32. * Rose V. Mutual Ben. Ins. Co., 23 N. Y. 616. » Clark V. Allen, 11 E. I. 439. * 70 Pa. St. 450. » 94 U. S. 561. * 94 U. S. 457. 460 CHANGE OF BENETICIART: ASSIGNMENT. § 302 opinion said : « Any person has a right to procure an insur- .ance on his life and to assign it to another, provided it be not done by way of cover for a wager policy ; and where the relationship between the parties, as in this case, is such 3a to constitute a good and valid consideration in law for Any gift or grant, the transaction is entirely free from any such imputation.' Several cases have been cited as de- ciding that any assignment of a life policy to one who has no interest in the life is void. We will notice them briefly. Oammack v. Lewis^ and Warnock v. Davis ^ were both cases in which the policies were taken out, by the procurement •of the assignees, in order that they might be assigned to Ihem, under such circumstances as that they might well be held to be in evasion of the law prohibiting gaming policies. The remark of Mr. Justice Field in the latter case that ' the assignment of a policy to a party not having an insurable interest is as objectionable as the taking out of a policy in his name,' was not necessary to the decision. In Franklin Ins. Co. V. Hazzard,' the assured had failed to pay the premiums, and had notified the insurers that he should not keep up the policy. He afterwards assigned it for $20, the insurer assenting and receiving the premiums. The assign- ment was held void, the court saying that such policies are assiornable, but not * to one who buys them merely as matter •of speculation without interest in the life of the assured.' Neither of these cases decides, whatever dicta may have ac- •companied the decision, that all assignments without in- terest are ille«»al. The case last cited is aflSrmed in the case ■of Franklin Ins. Co. v. Sefton,* in which Chief Justice Worden, quoting from the opinion of the court in Hutson V. Merrifield* — that ' the party holding and owning such a 1 15 WaU. 643. « 104 U. S. 775. » 41 Ind. 116. * 53 Ind. 380. • 51 Ind. 24. 461 § 302 CHANGE OF BENEFICIARY: ASSIGNMENT. policy, whether on the life of another or on his own life, has a valuable interest in it which he may assign, either absolutely or by way of security, and it is assignable like- any other chose in action,' — says that it is not stated that it is assignable to a person incapable of receiving an assignment ; and adds, ' It may be added that where the policy holder dies before the death of the party whose life is insured, perhaps the administrator of the holder could, for the purpose of converting the assets into money and settling up the estate in due course of law, sell the policy to- any one who might choose to become the purchaser.' Mis- souri Valley Ins. Co. v. Sturges,' assumes and decides that the same objections lie to an assignment without interest as to an original insurance with no interest. The distinction between the two transactions is not considered. Basye v. Adams,'' seems to decide, on the authority of Warnock r. Davis, Cammack v. Lewis, Franklin Ins. Co. v. Hazzard,. and Missouri Valley Ins. Co. v. Sturges, ubimpra, that an assignment without interest is void as against public policy. The case of Stevens v. Warren,^ decided in 1869, has been supposed to hold that an assignment of the right of the assured in a life policy to one who has no interest in the life, is void without regard to the circumstances and character of the particular transaction, and has been re- ferred to in some of the cases just cited as an authority to that effect. We think that decision has been misunder- stood, and that, in connection with other decisions of this court, it shows that the law in this Commonwealth accords with that laid down in Clark v. Allen." * The court then examines Campbell v. New England Ins. Co.,* Stevens v. I 18 Kan. 93. s 81 Ky. 368. » 101 Mass. 564. < 11 R. I. 439. » 98 Mass. 381. 462 CHANGE OF BENEFICIARY: ASSIONHENT. § 302 Warren,! Palmer v. Merrill,^ and Troy v. Sargent,' to show that assignments of life policies have been upheld when not covers for gambling transactions and concludes thus : "Th& general rule laid down in Stevens v. Warren, supra, ' that no one can have an insurance upon the life of another, un- less he has an interest in the continuance of that life,' and fi-om which the inference that an assignee of a party must have an insurable interest seems to have been drawn, we think, is not strictly accurate, or may be misleading. An insurable interest in the assured at the time the policy is taken out is necessary to the validity of the policy, but it is not necessary to the continuance of the insurance that the interest should continue ; if the interest should cease, the policy would continue, and the insured would then have an insurance without interest.* The value and permanency of the interest is material only as bearing on the question whether the policy is taken out in good faith, and not as & gambling transaction. If valid in its inception, it will not be avoided by a cessation of the interest. The mere fact that the assured himself has no interest in the life does not avoid or annul the policy." It is believed that this doc- trine is supported by the weight of authority, although some cases bear to the extreme that policies of life insur- ance are mere choses in action and others insist that the assignee must have an insurable interest in the life insured. In one case,* it was held that wager policies were not prohibited by the laws of New Jersey. In Kansas the Supreme Court held that a policy of life insurance, assigned for a valuable consideration to one who did not have an in- ' 101 Mass. 564. 2 6 Onsh. 282. » 132 Mass. 408. * Dalby r. India & London Assn. Co., 15 C. B. 365; Iaw v. London Policy Co., 1 Kay & J. 223 ; cited in Loomis v. Eagle Ins. Co., 6 Gray, 396; Conn. Mnt. Life Ins. Co. v. Schaefer, supra; Kawlso. American Ins. Co., 27 N. Y. 282 ; Provident Ins. Co. v. Banm, 29 Ind. 236. ' Trenton Mnt. L. &. F. Ins. Co. v. Johnson, 24 N. J. L. (4 Zab ) o7C. 4(53 N •^ 303 CHANGE OF BENEFIOIAEY : ASSIGNMENT. eurable interest, was worthless and void not only in the hands of the assignee but in the hands of the beneficiaries ^nd their assignee.^ § 303. Validity of Assignment, bow Determined: Amount of Recovery by Creditor and Assignee. — The va- lidity of the assignment is determined by the law of the •domicile of the parties or the place where made.* Proof that the assignee of a life insurance policy caused the death 1 Missouri Valley Life Ins. Co. v. McCrum, 36 Kan. 146; 12Pac. Eep. -517. In the following cases the assignments of policies of life insurance have been sustained, although to one not having an insurable Interest: Palmer v. Merrill, 6 Gush. 282; 52 Am. Dec. 782; St. John v. American, •etc., Ins. Co., 2 Duer,419; 13 N. Y. 31; Valton v. Natl. Fund L. Ins. Co., 20 N. Y. S2; EawlS v. American L. Ins. Co., 36 Barb. 357; 27 N. Y. 282; Olmstead v. Keyes, 85 N. Y. 593; Hogle v. Guardian L. Ins. Co., 6 Robt. 567; Fairchild v. Northeast M. L. Ins. Co., 51 Vt. 613; Ashley v. Ashley, -3 Sim. 149; Lamontv. Hotel Men's, etc., Assn., 30 Fed. Eep. 817; Murphy V. Bed, 64 Miss. 614; 1 South. Eep. 761; Bloomington M. L. Assn. v. Blue, 120 111. 121 ; 11 N. East. Eep. 331 ; 8 West. Rep. 642 ; N. Am. Ins. Co. o. • Craigen, 6 Euss. &6. (Nov. So.) 440: Eckel ». Eenner, 41 Ohio St. 232; Mut. L. Ins. Co. V. Allen, 138 Mass. 24; Cannon v. N. W. Mut. L. Ins. Co. 29 Hun, 470; Conn. Mut. L. Ins. Co. v. Schaefer, 94 U. S. 457; N. Y. Mut. L. Ins. Co. V. Armstrong, 117 tJ. S. 591; Clark v. Allen, 11 E. I. 439; Bursinger v. Bank of Watertown, 67 Wis. 76. In Langdon v. Union Mut. L. Ins. Co., 14 Fed. Eep. 272, it was left to the jury to say whether the pol- icy was a wagering one or not. In the following cases the want of insur- ble interest was held to vitiate the assignment: Franklin Life Ins. Co. v, Sef ton, 53 Ind. 380 ; approving Franklin L. Ins. Co. ». Hazzard, 41 Ind. 116 ; ;Settle». Hill, 5 Ky. L. Eep. 691; Keystone Mut. Ben. Assn. v. Norris, 115 Pa. St. 446; 19 W. N. C. 248; 7 Cent. Eep. 204; 8 Atl. Eep. 638; Ala. Gold L. Ins. Co. V. Mobile Mut. Ins. Co., 81 Ala. 329; 1 South. Eep. 561; Price V. Knights of Honor, 68 Tex. 361 ; 4 S. W. Eep. 633; Downey t). HofEer, 16 W. N. C. 184; Wegman v. Smith, Id. 186; Stoner ^.Line, Id. 187; Meilye. Hershberger, 16 W. N. C. 186 ; Warnock v. Davis, 104 U. S. 775 ; Cammacfc V. Lewis, 15 Wall. 643; Missouri Vall.L. Ins. Co. v. Sturges, 18 Kan. 93 N. Y. Life Ins. Co. v. Parent, 3 Que. L. E. 163; Same v. Talbot, lb. 168 Michaud e. British Med. Assn., Eamsey's App. Cas. (Low. Can.) 377 Basye v. Adams, 81 Ky. 368 ; Missouri Vail. L. Ins. Co. v. McCrum, 36 Kan. 146; 12 Pac. Rep. 517; Ruth v. Katterman, 112 Pa. St. 251; 2 Cent. :Rep. 776; 3 Atl. Eep. 833; Gilbert v. Moose, 104 Pa. St. 74. 2 Mut. L. Ins. Co. V. Allen, 138 Mass. 24. 464 CHANGE OF BENEFICIARY: ASSIGNMENT. § 303 of the insured by felonious means is sufficient to defeat a recovery on the policy.^ Unless there is a gross discrep- ancy between the amount of the policy and the debt, the Assignee of the policy can recover the full amount of the latter.^ If the debt is small and the insurance large the insurance will be treated as security or indemnity only.* And the personal representatives may recover the excess t)ver the debt.* It has, however, been strongly insisted that the rights of a creditor to a policy of life insurance on the life of his debtor are always limited to the amount of the debt. In Armstrong v. Mutual Life Ins. Co.* it was «aid : " The assignment could not rise higher than the instrument assigned and further the instrument itself limits the rights to be passed to the assignees. Such right could not extend beyond an interest in the life of the assured "which could be proved. If the interest was that of a cred- itor it would be limited by the amount of his probable debt. As no debt is shown no interest is shown, and nothing is £hown to have passed to the assignee."* If a policy be • > New YorkMut. L. Ins. Co. «. Armstrong, 117 TJ. S. 591. » Bevinti. Conn. Mut. L. Ins. Co., 23 Conn. 244; Trenton Ins. Co. ■». Johnson, 24 N. J. L. 581; Amick o. Butler, 111 Ind. 578; 9 West. Rep. ■842; 12 N. East. Bep. 518; Grant v. Kline, 115 Pa. St. 618; 9 Atl. Eep. 150 ; 7 Cent. Eep. 626 ; Hoyt v. N. T. Life Ins. Co., 3 Bosw. 440 ; St. John v. Am. Mnt. Ins. Co., 2 Duer, 419; MiUer v. Eagle Ins. Co., 2 E. D. Smith, 268; Grattan v. Natl. L. Ins. Co., 15 Hun, 74; Ferguson o. Mass. Mnt. L. Jns. Co., 32 Hun, 306, afid. 102 N. Y. 647. s Cammackt). Lewis, 15 Wall. 643; Am , etc., Ins. Co. v. Eobertshaw, -26 Pa. St. 189; Conrtenay k. Wright, 2 GifE. 337. See Hebden v. West, 3 Best & S. 579; 9 Jnr. (N. 8.) 747; 321.. J. Q. B. 85; 7 L. T. (n. 8.) 854 where It is held that where two policies at life insurance are fomided on the same insurable interest recovery on one bars recovery on the other. ' Siegristr. Schmoltz, 18 W. N. C. (Pa.) 321; 6 Atl. Rep. 47; 5 Cent. Bep. 230; Helmetag v. Miller, 76 Ala. 183. 5 11 Fed. Kep. 573. • The coort cites Cammack v. Lewis, 15 Wall. 643; Thatch t). Metropole InSjCo., 11 Fed. Eep. 29. This case, cited in the text, was afterwards reversed by the Supreme Court of the United States; N. Y. Mut. L. Ins. Co. s. Armstrong, 117 U. S. 591, but chiefly on account of errors in 30 465 § 304 CHANGE OF BENEFICIARY: ASSIGNMENT, assigned to one without interest, or if, for any reason, the assignment is held void or imperfect, so that it does not pass the fund to the assignee, the latter has in equity a lien on the policy for the amount of premiums he has paid, with interest.^ But payments made by a stranger to- the contract give him no lien or claim to the insurance money.* § 304. Distinctions between Certiflcates of Beneficiary Societies and Policies of Life Insarance in Sespect to- Assigrnment or Changes of Beneficiary. — The Supreme Court of Indiana* points out the fundamental difference- between a certificate of membership in a benefit association and an ordinary policy of life insurance so far as the change of beneficiary and assignment are concerned. As regards the former the designation is an appointment, subject gen- erally to revocation ; in the latter one party to a contract exercises his rights under such contract. In the above men- tioned case the court says: " Whatever rights beneficiar- ies have in life policies, they have by virtue of the con- tract between the insurance company and the assured. In the case of an ordinary insurance policy, the right of the beneficiaries in the policy, and to the amount to be paid upon the death of the assured, is a vested right, vesting upon the taking effect of the policy. That right cannot be defeated by the separate, or the combined, acts of the assured and insurance company without the consent of the admission of testimony. The court said that life insurance policies are assignable if not made to cover specnlative risks and payment thereof may be enforced for the benefit of the assignee. 1 Conn. Mnt. Life Ins. Co. v. Burroughs, 34 Conn. 305; Weisert v. Muehl, 81 Ky. 341; City Savings Bank v. Whittle, 63 N. H. 587; Unity- Association V. Dngaa, 118 Mass. 219. 2 Lockwood V. Bishop, 51 How. Pr. 221; Bnrridge v. Howe, 1 T. & C. C. C. See ante, §248, et seq.; poit, §§ 312, 397. » Holland v. Taylor, 111 Ind. 125; 12 N. East. Eep. 116; 9 West. Bep. 606. 466 CHANGE OF BENEFICIARY : ASSIGNMENT. § 304 beneficiary.^ As in other cases, so here, whatever right or power Taylor, the assured, had to and over the certifi- cate, was by virtue of the terms of the certificate and the by-laws of the order, which together constituted the con- tract between him and the order. And whatever rights the beneficiary, Anna Laura, had, or now has, to the fund to be, and in this case paid, upon the death of the assured, her father, she had, and has, by virtue of the same con- tract. It should be observed that the Koyal Arcanum ia not a domestic corporation, and hence not affected by § 3848 E. S. 1881.2 If, then, the Boyal Arcanum were to be treated as an ordinary life insurance company, and the certificate as an ordinary life policy, it would be clear that Taylor, the assm-ed, had no authority, by will or otherwise, to change the beneficiary, or 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 differ- ences usually existing between the contracts evidenced by such certificates 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 bene- ficiary. But as in either case the rights of the beneficiary are dependent upon and fixed 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 beneficiary in one case than in the other, except as that power may be inherent in the nature of the ' Harley v. Heist, 86 Ind. 196; 44 Am. Rep. 285; Damron v. Penn. Mat.. L. Ins. Co., 99 Ind. 478. * Presb. Ass. Fund t>. Allen, 106 Ind. 593. ' Presb. Mat. Ass. Fund v. AUen, supra; Elkhart Mut. Aid Assn. c Houghton, 103 Ind. 286; 53 Am. Rep. 514; Bauer c. Sampson Lodge, etc.,. 102 Ind. 262. 467 § 305 CHANGK OF BENEFICIARY: ASSIGNMENT. association, or is reserved to him by the constitution, or by the laws of the association or by the terms of the certifi- cate. In the case before us, the right and power of the assured, Taylor, to change the beneficiary was reserved to him by the by-laws of the order, and recognized in the certificate. Because of that reservation, the beneficiary, Anna Laura, did not have a right in and to the certificate, and the amount to be paid upon the death of the assured vested in such a sense that it could not be defeated. But it would be saying too much to say that she had no rights. She was the beneficiary named in the certificate. The executors, eo far as shown by the terms of the certificate, had no right at all either in or to the certificate, or to the amount to be paid by the association. So far as shown by that certifi- cate, they were mere trustees to collect the amount for the use and benefit of the real beneficiary, Anna Laura. So long as the contract remained as executed, she had the right ■of a beneficiary, subject to be defeated by a change of the beneficiary by the assured. So long as the certificate re- mained as executed, the assured had reserved to himself the power to change the beneficiary, and that was the ex- tent of his right in, or power over, the certificate, or the amount agreed to be paid at his death. He had no interest in or to either the certificate or the amount agreed to be paid, that would have gone at his death to his personal rep- resentatives. By virtue of the by-laws and the certificate, which, as we have seen, constituted the contract between him and the Eoyal Arcanum, he had power to change the beneficiary." § 305. Development of the Law Concerning Change of Beneficiary. — In one of the earliest cases involving the right of a member of a benefit society to change his designation of a beneficiary,^ the change was allowed for two reasons: * 1877, Dnrlan r. Central Verein, 7 Daly, 168. 4G8 CHANGE OF BENEFICIARY: ASSIGNMENT. § SO^ one being that the laws of the organization permitted it and the second being the same given by the Supreme Court of Connecticut in sustaining an alteration and substitution of beneficiaries in a policy of life insurance,^ viz. : that the evidence of the contract, the policy, had not been delivered to the beneficiary so as to become an executed settlement in favor of the latter.^ The doctrine of executed settle- ment was the stumbling block in the way of holding from the first that a member of a benefit society might at pleasure change the beneficiary to another than the one first desig- nated; but in a later case* it was avoided in the same way as in the New York case just cited, by holding that there was no valid executed transfer by delivery. In this case the Supreme Court of Tennessee said: " By the charter of the Knights of Honor, as we have seen, the benefit fund of a member ' shall be paid to his family, or as he may direct,' and by the constitution he may direct the payment ' by will, entry on the reporter's record book, or benefit cer- tificate.' Of course, a, direction by will may be changed at any time before the death of the party, and the consti- tution of the order expressly provides for a similar change in the case of an entry on the record book. The benefit certificate only certifies the fact that the member named is entitled to the benefit fund, and the form in the lower left hand corner, when fiUed up, is only a direction to whom payment is to be made. There is no reason for supposing that such a direction in the certificate should have any other effect than a direction on the record book, or a will. In fact, the form is a wiU. ' It is my wiU ' that the benefit shall be made to the person named. Such an instrument, attested by two witnesses, might be proved as a wiU of the fund » Lemon v. Phoenix M. L. Ins. Co., 88 Conn. 301. » SeeDeady o. Bank Clerks' M. B. A., 17 Jones & Sp. 246; Johnson V. Van Epps., 14 Bradw. 201; 110 lU. 551. * Tennessee Lodge v. Ladd, 5 Lea, 716. 469 § 305 CHANGE OF BENEFICIARY: ASSIGNMENT. under our law.* No doubt the language was adopted for the express purpose of obviating a difficulty which might arise upon a simple direction as to whether it could have effect as an assignment without delivery. The execution of such an instrument, without more, would not divest the member of his interest in the fund, nor vest the fund in the person to whom it is directed to be paid. It would still be the fund of the member and subject to his disposal. This court' has held that a husband who takes out a policy of insurance on his own life in his own name, is entitled to treat it as his property and dispose of it by will.^ If he take the policy in the name of his wife, intending to give her the benefit of it, she would thereby acquire a vested iur terest of which he could not afterwards deprive her.s The same rule would undoubtedly apply where he voluntarily assigned to his wife, by an executed contract, a policy taken out payable to himself.^ A benefit certificate, like the one before us, would be governed by the same rule, and would remain the property of the husband, subject to disposition by will unless previously assigned for a valuable considera- tion, or voluntarily transferred by an executed contract.* In this view, the ' will' of W. E. Ladd, in the direction on the face of the last certificate, would carry the right to his daughter, unless the evidence shows a valid executed transfer to the wife of the first certificate. Her testimony fails, unfortunately, to establish either the necessary inten- tion or the requisite delivery." About the same time the Supreme Court of Illinois came to a similar conclusion for a different reason.* In this case the certificate and laws of 1 Mcliean v. McLean, 6 Humph. 452. 2 Bison V. Wilkerson, 3 Sneed, 565; Williams v. Carson, 2 Tenn. Ch. 269; afiSrmed on appeal. 3 Gosling V. Caldwell, 1 Lea, 454. * Fortescne o. Barnett, 3 Myl. &K. 36. « Weil V. Trafford, 3 Tenn. Ch. 103. • Swift V. Railway, etc., Ben. Assn., 96 111. 309. 470 CHANGK OF BENEFICIAET : ASSIGNMENT. § 305 the society provided that the benefit might be disposed of by will, if not so disposed of it should go first to the widow, or if he had no widow, then to his heirs. The member made his will leaving the benefit to his two daughters; afterwards, by a paper held to amount to an equitable assignment, he ^ve the benefit to his wife if she would pay certain assess- ments. In holding the assignment good the court said: •" It is strenuously insisted that this contract was of such a <5haracter that it could not be assigned, even equitably by •Clark Swift. We think otherwise. Neither the wife nor children had any vested interest, conditional or otherwise, in this insurance money so long as Clark Swift lived and owned and controlled this contract. The contract was be- tween the association and himself. The children paid nothing for their supposed interest. The certificate had not been delivered or sold to them. The delivery to White made him bailee for Swift. It was a contract which was capable of being rescinded by Clark Swift, with the assent of the association. It is not conceived that he had not complete control over it, to the same extent that he might have controlled a promissory note payable to him. The will, of course, was of no effect until he died. At the time of his death, he held no interest in that part of the money to arise from the contract relating to his •death, which could pass to the executor by the will. That interest had been sold. It was assignable in equity, and had been assigned to and paid for by the wife." In 1881 the Supreme Court of Minnesota held that that the benefi- ciary under a membership in a benefit society could be changed at the pleasure of the member because the contract permitted it, the reservation of such power being made in the laws of the society. In this case^ the court said: "Here is not an ordinary contract of insurance, made between an insurance company and another person, the rights of the > Bichmond v. Johnson, 28 Minn. 419. 471 § 306 CHANGE OF BENEFICIARr : ASSIGNMENT. parties to be determined exclusively by the policy. The- rights of Charles H. Kichmond, and of any one claiming through him, depended, not on the certificate alone, but rather on his membership in the association ; and such rights- were defined and controlled by its constitution and by- laws." § 306. Present Doctrine. — And the accepted doctrine^ now generally approved by all the authorities, is that the- beneficiary may be changed if the laws of the order so pro. vide, or if, when such transfer is not prohibited by the law* of the society, the certificate or policy has not been deliv- ered to the beneficiary .1 The Supreme Court of New Hamp- shire goes further and ^ holds that from the nature of the power given members of benefit associations the right of its free ex- cise requires its continuance until death. The court says : "The contract, though one of life insurance, must be interpre- ted according toits terms, in view of the laws of the defendant association and of the evident understanding of the parties. The by-laws provide that ' when a member dies, the associa- tion shall pay within sixty days, to his direction as entered upon his certificate of membership, the sum of two thousand dollars,' if the death assessments amount to that sum. The- certificate of .membership provides that ' in accordance with the provisions and laws governing said association, a sum not exceeding $2,000 will be paid by the association as a bene- i Cases supra; Holland v. Taylor, 111 Ind. 121; Ireland v. Ireland, 42- Hun, 212; Supreme Lodge v. Martin, 13 W. N. C. 160; Splawn v. CheWv 60 Tex. 533; Highland v. Highland, 109 111. 366; Coleman v. Knights of Honor, 18 Mo. App. 189; Raub v. Mut. R. Assn., 3 Mackey, 68; Lamont V. Hotel Mens' Assn., 30 Fed. Rep. 817; Barton v. Provident Mut. R. Assn., 63 N. H. 535; Schillinger o. Boes, 9 Ky. L. Rep. 18; 3 S. W. Rep. 427; Masonic Mut. Ben. Assn. ©. Burkhardt, llOInd. 189; 11 N. East> Rep. 449; 7 West. Rep. 527; Sup. Council Catholic Mut. Ben. Assn. v.. Priest, 46 Mich. 429; Gentry v. Sup. Lodge, 23 Fed. Rep. 718; 20 Cent.L. J. 893; Supreme Council Am. Leg.' of Honor t>. Perry, 140 Mass. 680. » Barton v. Provident R. Assn., 63 N. H. 635; 1 New Eng. Rep. 856. 472 CHANGE OF BENEFICIARY: ASSIGNMENT. § 306' fit, upon due notice of his death and the surrender of the 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, said sum to be paid provided he is in good standing when he dies.' The power of direction as to- the object of the benefit is given to the member both in the by-law and in the certificate of membership, and there is nothing in either tending to show that the power is to be exercised at the time of becoming a member, or that, whea exercised the power is exhausted and another beneficiary cannot be substituted. The power of selection is unlimited as to persons and is limited in time only by the death of the member. The certificate remains in the possession and control of the member until death, and the provision for paying the benefit to the person named in the certificate at the death of the member, as then appears, leaves the power to appoint the beneficiary continuous until that event. The power of appointment is the one thing in the contract which is given to the member, and over that power no other person has any control. The right of its free exercise requires its continuance until death. The appointment by Barton of the plaintiff, his wife, to the benefit at the time he became a member, was no bar to his right to appoint another or oth- ers by a subsequent change. She was no party to the con- tract, and acquired no vested right in the benefit. The contract was between Barton, her husband, and the defend- ant, which, on the performance of the conditions of member- ship, agreed to pay the benefit to any person whose name might appear by his entry on the record-book or the face of the certificate at his death. The power of appointment being free and continuous, no right to the benefit could vest in the plaintiff until it became certain that her name remained in the certificate as beneficiary, at her husband's death. If by the entry of her name as beneficiary, the plaintiff ac- quired any interest whatever in the benefit it was only a 473 ^ 307 CHANGE OF BENEFICIART : ASSIGNMENT. contingent interest, which her husband had the power to defeat, and which he has defeated by exercising the power of substitution in the appointment of other beneficiaries." The principle declared in the preceding case' is undoubtedly •correct, and follows most closely the precedents relating to the execution of powers. If designating a beneficiary is- like executing a will, a stronger argument in favor of the rule is found, for from its very nature a will, whether executing a power, or disposing of ordinary property, is ambulatory and liable to be revoked.^ And in the best considered cases this characteristic of a benefit appurtenant to membership in a benefit society is recognized.* The right to change the beneficiary is not affected by the fact that the first beneficiary paid the assessments of the mem- ber and the change was made without his consent.* § 307. Change of Beneficiary must be in Way Pre- scribed by the Laws of the Society. — Although the mem- ber of a benefit society is thus generally teft free to revoke his designation of beneficiary and appoint a new one, he must do so in the way pointed out by the laws of the or- ganization. It is but carrying out the rule laid down in re- gard to powers, that if a method of revocation of an appointment is created by the instrument conferring such power, this direction must be complied with. If the laws ■of the society prescribe certain formalities to be observed in the change of beneficiary, or if the assent of the society to a transfer is required, all the requirements must be -obeyed. The Supreme Court of Indiana says* that the 1 Barton e. Provident R. Assn., supra. ' In re Davies, 13 £q. Cas. 163; Oke v. Heath, 1 Ves. 135; Easum o. Appleford, 6 M. & C. 56; Lord Godolphin's Case, 2 Yes. 78. ° Relief Association v. McAuley, 2 Mackey, 70 ; Masonic Mnt. Ben, •Soc.fl. Burkhardt, 110 Ind. 189; ante; § 291. * Msk V. Equitable Aid Union (Pa.), 11 Atl. Bep. 81; 9 Cent. Rep. -403. * HoUand v. Taylor, 111 Ind. 127. 474 CHANGE OB' BENEFICIARY : ASSIGNMENT. § 307 same contract that permits the change " fixed the mode and manner in which that change might be made, and we think "that, taking the by-laws and the certificate together, the mode and manner of changing the beneficiary was fixed as in the contract, whereby th e name of the beneficiary should be changed, was made a matter of substance, and should he- complied with." In most of the cases where the method of change of beneficiary was drawn in question the member had attempted to either divert the benefit by will, or the as- sent of the society to the change was required and had not been obtained, and thereby the attempted change was abortive. The rule above laid down has been generally ac- cepted.^ The mention of one method of change has been held to impliedly or expressly exclude all others on th& ground that, ^'expressio unius est exclusio alterius." ^' Where a member of a benefit society becomes suspended for non-payment of assessments, he may, in his application for reinstatement, designate a new beneficiary, and the society in readmitting him acquiesces in the change.' Inasmuch as the beneficiary has no vested rights in the certificate of a benefit society resulting from the assured's membership therein, not being a party to the contract, he cannot com- plain that a by-law, in existence at the time the certificate was issued, providing the member may surrender the certi- ficate, and receive a new one, with the consent of the bene- ficiary, was amended so as to allow such surrender and. 1 National Mutual Aid Society v. Lupoid, 101 Pa. St. Ill ; Gentry ».- Knights of Honor, 23 Fed. Rep. 718; 20 C. L. J. 393; Ireland ». Ireland, 42t Hun, 212; Knights of Honor v. Nairn, 60 Mich. 44; 26 N. W. Rep. 826; Vollman's Appeal, 92 Pa. St. 60; BUiott v. Whedbee, 94 N. C. 115; Highi lando. Highland, 109 HI. 366; Greeno v. Greeno, 23 Hun, 478; Kentucky- Masonic M. Ins. Co. V. Miller, 13 Bosh, 489; Manning v. Supreme Lodge- A. O. U. W., 5 S. W. Rep. 386; 7 Ky. Law Rep. 751; Rank v. Herrman: Lodge, 2 Demar. 409; Olmstead b. Masonic Mut. Ben. Soc, 37 Kan. 93;: 14 Pac. Rep. 449; Basye v. Adams, 81 Ky. 368 ; Daniels b. Pratt, 143 Mass. 216; Harman*. Lewis, 24 Fed. Rep. 97, 530; Eastman v. Provident Mut.- Assn. (N. H.) 20 C. L. J. 266; Hotel Men's M. Ben. Assn. v. Brown, 3S Fed. Rep. 11. 2 Coleman c. Knights of Honor, 18 Mo. App. 189; Olmstead ». Ma- sonic Mut. Ben. Soc, 37 Kan. 93. ' Davidson v. Knights of Pythias, 22 Mo. App. 263. 476 CHANGE OF beneficiary: ASSIGNMENT. § 308 •change without the consent of the beneficiary, the constitu- tion of the society providing that its by-laws might be ^amended at any time.^ A benefit certificate, subject by the laws of the oi-der to change at will, on the compliance with certain formalities and the surrender of the old certificate, may be changed in the prescribed way, although it had been delivered to a third party who paid the assessments ^nd was obtained from him without his consent.^ § 308. The Opposing View. — The courts of Texas and Kentucky take a different view. This dissent and the rea- :Sons supporting it will appear from the following extracts from the opinions. In Splawn v. Chew,^ which was a con- itroversy between the original beneficiary, named in the cer- tificate, and the devisee of the same benefit in the will of the member subsequently made, the Supreme Court of Texas said: " The right to change the disposition of [the] money being established in the member, the next question is, how is it to be exercised? It is contended by appellees that it can be exercised only in the manner pointed out in the third section of the third by-law, which reads as fol- lows: ' Members may at any time, when in good standing, surrender their certificate, and have a new one issued, pay- able to such beneficiary or beneficiaries dependent upon them as they may direct, upon payment of a certificate fee •of fifty cents.' This section is in further recognition of the right to make the alteration, and it seems to be admitted that a surrender of the old certificate and the issuance of a new one under this section would effect a change in the beneficiaries of the policy. But is this the only way in TV hich such a change can be effected ?. The right to make the change is given by a different section of the by-laws, and exists in the insured so long as he remains a member of the ' Byme c. Casey (Tex.), 8 S. W. Kep. 38. « risk V. Equitable Aid Union (Pa.), 11 Atl. 84; 9 Cent. Rep. 403. ' 60 Tex. 532. 477 § 308 CHANGE OF beneficiary: assignment. order. A method by which he may accomplish it to the sat- isfaction of the order is pointed out in the section last recited, but we do not consider this as exclusive of all other ways of effecting the same object. The design of this sec- tion 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 pro- visions in the by-laws of private corporations, it may be waived at the option of the corporation, being for its bene- fit alone. This has been held in reference to such provis- ions when prescribed in mandatory terms. If they can be waived in such cases, much stronger would seem to be the reason why this can be done when the course to be pursued is directed, as in this instance, in permissive language- 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 inter- ested 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." In the Kentucky case,^ the laws of the order provided that a member might at any time change the beneficiary by revoking the first designation and designating a new beneficiary in a form given on the back of the certificate, having the same attested by the recorder of the subordinate lodge with its seal there- to attached, and paying a fee of fifty cents for a new certifi- cate, which was thereupon to be issued by the supreme lodge upon receipt from the local lodge of this old certificate, the attested revocation and the fee. In this case the member had left the certificate in charge of the local lodge. Sub- sequently he married and wrote the lodge inclosing his dues and requesting the officer to send him the certificate made ' Manning v. Ancient Order of United Workmen, 5 S. W. Eep. 385. 478 CHANGE OP beneficiary: ASSIGNMENT. § 308^ out to his wife. No fee was sent and the officer of the lodge wrote to him for it. Nothing was done until after the death of the member when the recorder of the lodge certified the letter to the supreme lodge, which issued the new certificate as requested and afterwards paid it. The suit was by the first beneficiary; judgment was given by the lower court for the defendant and in affirming this the Court of Appeals said: " The appellant had but a contingent right to the benefit; not a vested and absolute one. It wa& subject to be defeated at the will of the assured. The law of the order, as above cited, provides how this shall be done. The regulation is a reasonable one ; but the question arises^ whether it shall govern as between claimants to the benefit, the order has seen fit to waive it. We think not. Its ob- ject, beyond doubt, was to prevent the appellee from becom- ing involved in litigation with outside claimants. Upon this idea it was held in the case of Aid Society v. Lupoid,^ that where the certificate provided, ' This certificate may be as- signed and transferred only by and with the consent of the association indorsed thereon,' and it was done without such approval, that it was a part of the contract, and that the society had a right to insist upon the protection which it was intended to afford. The direction by the insured to change the benefit was, in the case now under consideration, given, through the proper channel. The subordinate lodge re- ferred it to the proper aathorily and it saw fit to waive the regulations intended for its benefit, and comply with the- direction although made in an informal manner and without the payment of the fee. The intention of the insured was to change the benefit. He so directed in writing; and now, because 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 • 101 Pa. St. 111. 479 » ^§ 308 CHANGE or bkneficiaet: assignment. be defeated, although the party, for whose benefit the form was prescribed, has seen proper to waive it. Such a rule would sacrifice substantial justice to mere form ; it would tend to defeat the benevolent aim and purpose of the organiza- tion, and the desire and intention of the insured. Members -of the order may be remote from their lodges ; 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 the appellee chooses to waive these formalities, 4t does not lie in the mouth of a third party to complain. The order is entitled to know who is entitled to the benefit fund, and the formal mode of changing its direction is for 4ts benefit; while, upon the other hand, the right of the beneficiary rests in the mere will of the assured. * * In our opinion, the letter of June 5, 1879, operated to .change the direction of the benefit, inasmuch as the appellee saw fit to waive its informality; and, as the assured had -therefore done all that was needed on his part, the fact that the appellee issued the new certificate after his death, does not affect the right of the parties. If the appellee were in .-court with the fund, asking that the conflicting rights of the claimants to it be determined, and was silent as to the ^informality of the direction to change the benefit, it seems -■to us that the widow ought to prevail." The facts of the above case would seem to have jtistified the interference of -equity to carry out the intention of the member, so clearly , expressed, but imperfectly executed ; ^ but the reasons given and the conclusions reached as to the law, as in the Texas case just cited, ^ are in decided conflict with the weight of . authority. In a few other cases the courts seem inclined to , take the view that the method prescribed for the change of ; beneficiary is not exclusive of all others, but careful exam- 1 Post, § 310. • Splawn V. Chew, supra, 480 CHANGE OF BENEFICIARY : ASSIGNMENT. § 309 ination shows that uDder the terms of the contracts in such <;ases there was room for this construction. Thus, in Raub t;. Relief Association,^ it was held that a by-law requiring "the assent of the society to any change of beneficiary, was void because the charter gave the right to dispose of the benefit by will and without the assent of the lodge. In Oatholic Benefit Association v. Priest," a disposition by will was sustained because the record did not show any law of the society taking away such right. In a Georgia case,^ a -defective transfer to a wife was upheld on the ground of •estoppel, for though Jhe assent of the company was re- Shillings V. Mass. Ben. Assn., 5 N. Eng. Bep. 718; 15 N. East. Bep. 566. ' Snp. Coxincll Catholic Mnt. Ben. Assn. ». Priest, 46 Mich. 429; Sup. ■Council Catholic M. Ben. Assn. v. Fimane, 50 Mich. 82 ; Knights of Honor «. Nairn, 60 Mich. 44; Felix v. Grand Lodge A. O. U. W., 31 Kan. 81; Briggsc. Earl, 139 Mass. 473; Smft v. San Francisco Stock & Exchange Board, 67 Cal. 667; Durian v. Central Verein, 7 Daly, 168; Eichmondi). Johnson, 28 Minn. 447; Bowno. CathoUc Mnt. Ben. Assn., 33 Hnn, 263; Worley v. Northwestern Mas. Aid Assn., 3 McCrary, 53; 10 Fed. Bep. 227; Schmidt o. Grand Grove, 8 Mo. App. 601; Fenn v. Lewis, 81 Mo. 269; 10 Mo. App. 478. ■ • Levy V. Taylor, 66 Tex. 662. 487 § 312 CHANGE) OF beneficiary: assignment. may have an unlimited range and then creditors may take.' Life insurance is regarded by the courts in the nature of a provision for a man's family and they are reluctant to di- vert it from that destimition. In most, if not all, of the- States, statutes exist exempting policies of insurance upon the life of husband or wife from the demands of creditors, and allowing every person to appropriate annually for the purposes of life insurance for the benefit of wife or children a sum not exceeding $500. Under a statute of this kind in Iowa, the Supreme Court of that State has held that even where the policy was payable to the assured, " his executors, administrators and assigns," that the wife took tJie entire fund free from the demands of creditors.' la Illinois the Supreme Court has held ^ that it is competent for the parties to contract so as to exclude creditors, and the same doctrine has been laid down in California.* In Texas, in a case where the policy was payable to the " heirs or assigns " of the deceased and had not been assigned by him, it was held' that the proceeds did not form a part of the estate of the deceased so as to be liable to the- debts of the deceased, but went directly to the heirs. It is only upon the clearest proof of fraud, if at all, can the- premiums paid by an insolvent upon a life policy for the benefit of his wife and children be recovered by creditors* And even then the recovery is limited to the amount of such premiums, or the excess over the sum allowed by the stat- ute to be expended for life insurance for the debtor's family, where such statutes exist.' An assignment by the wife of 1 Maneely «. Kalghts of Birmingham, 116 Fa. St. 306 i Bloomingtoor Mut. Ben. Assn. v. Blue, 120 111. 127. ' Bliode V. Bank, 62 la. 876. » People, etc., v. Phelps, 78 111. 147. * Swift V. San Francisco Stock & Exch. Board, 67 Cal. 667. » MuUins ti. Thompson, 61 Tex. 7. * Fence «. Makepeace, 66 Ind. 346; Stone v. Knickerbocker L. Ins. Co., 62 Ala. 689; Stigler v. Stigler, 77 Va. 178; Levy v. Taylor, 6B Tex. 662; .aitna Nat. B'k v. U. S, Life Ins. Co., 24 Fed. Hep. 770; Central 488- CHAXGE OF BESEFICIABT : ASSIGVHENT. § 31? s poHcy of insurance upon her husband's life for her bene- fit will not be decreed at the suit of creditors, nor its arails be appropriated in advance by operation of law.^ These statutes do not affect the ri^t of a solvent man to apply as mach of his means as he likes to the payment of pre- mioms upon policies of life insurance for his wife's benefit.^ Ab between creditors seeking to have a common fond ap- jnropriated to the payment of their demands, he who files his bill first is entitled to priority.^ Hational Bank e. Home, 3 Mackey, 360; Pallia e. Bobinson, 73 Mo. 202;. 5 Mo. App. 548; Conn. M. li. Ins. Co. c. ;^an, 8 Ho. App. 533; Mat. I.^ Ins. Co. V. Sandfelder, 9 Mo. App. 335; Cole v. Msrple. 98 HL 58; XH- xatht). Scbonfield, 76 Ala. 199; Thompson «. CnndifE, 11 Bnsb, 567. 1 Baron o. Bnunmer, 100 N. Y. 372. * Follis o. Bobinson, 73 Mo. 202. • Follis V. Bobinson, supra; Ge(uiMli liny diffitnitido l)(il,w<)j;n!o. •' A [iroiriirtnory niproMontfttion," nays .Iiidj^o (imy/ "inay lio inwiirlrd in th«) policy ilMolfj or it may be in thtt Conn ol' a wrilUin n|iplic,alJon for inNunuiod, nil'ori'dd to in th(i |)olicy in vucli aiinmnnr an to tniilu) it in law a part iii(tl'(t()l'; an, Allmi, Kill Iml. fiODi ('iifthmiiii i>. U. H. Mfo Iiim. €0<|flH N. V ilHi ,ln(Trl«« v. iriiloii MiiL I/. Illl, Oo., 1 M(!(;nii'y, 1U| 1 ITotl. Ut<|> 'Will »« Willi. *7| iiiitu, § SUN. • KIraliall ". yiUiia K. Iu«. Co., ii Allmi, HO, 408 § 323 CONDITIONS WHICH AVOID THE" EIGHT. JEitaa, Life Ins. Co.,^ it was said : " The insurer is at liberty to compel, an observance of promises in regard to future- conduct, by incorporating them into the written contract, if it regards, a performance , as important, but the promise, unless embodied in the contract is not a part of it. All things to be done by one or the other during the continu- ance of the written agreement, upon the doing of which the life of the contract depends, mustappear in the agreement." ^' There is a difference of opinion as to what language will constitute a promissory warranty. In one case ' the Su- preme Court of Pennsylvania held that by "declaring" that he would not do certain things the insured did not •' warrant " that he would not. JThe United States Circuit Court, upon similar facts, held the reverse.* In a case de- cided by the Supreme Court of California,* the facts wer& these : The member of a temperance order agreed in his- application ' ' that a compliance with all the laws, regulations and requirements which now or hereafter may be enacted by our said order is the express condition upon which I am to be entitled to participate in» the mutual benefit life system," and the certificate contained a clause that it was issued upon the express condition that the member "shall in every particular, while a member of our said order^ comply with all the laws, rules and requirements thereof." After becoming a member the assured began to drink in- toxicating liquors and his death was hastened by such use of liquor. At the time of his death all his dues and assess- ments were paid up, and afterwards the beneficiary named 1 U. S. Cir. Ct. Conn., 52 Conn. 676; 23Blatchf. 223; 23 Fed. Eep. 438. 2 Citing Alston v. Mechanics' Ins. Co., 4 Hill, 329; Mayor, etc., v, Brooklyn Ins. Co., 4 Keyes, 465; Bryant o. Ocean Ins. Co., 22 Pick. 200? Ins. Co. V. Mowry, 96 U. S. 544. « Knecht v. Mutual Life Ins. Co., 90 Pa. St. 118. * Schultz V. Mut. Life Ins. Co., 6 Fed. Rep. 672. " Hogins V. Sup. Counc. Champions of the Bed Cross, 18 Pac. Rep.. 125. 494 CONDITIONS WHICH AVOID THE KIGHT. § 323' in the certificate brought suit against the order for the bene- fit. The defense was the violation of the condition as to- the use of liquor. The remaining facts are stated by the court in its opinion as follows: " The controlling and dis- tinguishing feature of this order is its requirement of daily abstinence from the use of liquor as a beverage by its members. It is the fundamental principle in every degree. In order to become a member of the order, or entitled to a beneficiary certificate, the applicant was required to take all the degrees, and to pledge himself upon taking each one, that so long as he was a member of the order he would wholly abstain from the use of all alcoholic liquors as a beverage. Violations of this pledge were punished by sus- pension. The system of insurance is clearly intended to be confined exclusively to temperance people. The appli- cant Hogins so understood it. In his application he ex- pressly agreed that he should not be entitled to the benefits of the system unless he complied with all the laws, regula- tions and requirements of the order. The clause quoted from the certificate does not, perhaps, literally express the meaning intended, but it is quite clear what was meant and intended by the parties. It does not say that payment is contingent upon the express condition, but such was clearly the intent. Appellant claims that the condition is for the issuance merely, but the conditions are in their nature mat- ters to occur in the future. ' That said Daniel Hogins shall in every particular, while a member of our said order,, comply with all the laws, rules and requirements thereof,' shows beyond controversy that his conduct after the issu- ance of the certificate was to be the condition of payment. His application shows clearly that such was his intention and contract, and we think that the application and the certificate may be read together for the purpose of showing that the clause in the certificate is an express condition precedent to the payment of the insurance, • * * We 495 ^ 324 CONDITIONS WHICH AVOID THE EIGHT. 'do not think that suspension or expulsion was necessary by the order to forfeit the policy." ^ § 324. Bestrictions on Travel or Residence. — It is !usual in life insurance policies for restrictions to be imposed upon the insured in regard to travel or residence beyond certain limits. In these cases, while the condition must be kept, it is competent for the insurer expressly, as by a permit, or impliedly, as by receiving ,a premium with knowledge of the violation* to waive the forfeiture. In the case of implied waiver it is immaterial whether the knowledge be actual or constructive,* but, if the knowledge Jae received through an agent who, under the contract, has no right to waive forfeitures there will be no constructive knowledge of the insurer* unless the insured be misled to his prejudice. If a permit be granted it will be con- strued most strongly against the company.* If the lan- guage used is clear and unambiguous it must be strictly followed, although the deviation be to the advantage of the insurer," and the waiver is only for the time named and jifter its expiration the conditions of the policy remain in force.' The indorsement of a permit to enjoy privileges which the insurer had under the original contract will not Affect or restrict such rights ; * but if such indorsement be made at the time the policy is issued it is to be deemed J See Sup. Counc. Royal Templars of Temperance v. Curd, 111 HI. 28t. ' Beyin v. Conn. Mut. L. Ins. Co., 23 Conn. 2H. ' Wing V. Harvey, 6 De G. M. & G. 265; 27 E. L. & Eq. 140; Garber v. >Globe, etc., Ins. Co., 6 Big. L. & A. Ins. Cas., 221 ; Gtrdlestone v. N. B. Mar, Ins. Co., 11 L. K. Eq. Cas. 197. * Lorle V. Conn. M. L. Ins. Co., 5 Big. Life &. Aco. Ins. Cas. 233. * Taylorc. Mtaa, Ins. Co., 13 Gray, 434; Notman v. Anchor Ass. Co., 4 , ■C. B. (N. 8.) 476 ; Pohalaski v. Mut. L. Ins. Co., 66 N. Y. 640; 46 How. Pr. fi04. * Hathaway «. Trenton Mut. L. Ins. Co., 11 Cush. 448; Forbes e. Am. Mut. L.Ins. Co., 15 Gray 249; Eaynsford v. Royal Ins. Co., 52 N. T. 626. ' Ayer v. N. E. Mut. L. Ins. Co., 109 Mass. 430. ' Forbes v. Am. Mut. L. Ins. Co., 15 Gray, 249. 496 CONDITIONS WHICH AVOID THE RIGHT. § 324 part of the contract.* A permit, however, is a separate «nd independent agreement.* In construing policies the term, "settled limits" of the United States, means the •estjxblished boundaries of the Union.* Whether when, under a permit, the insured has gone into a region forbid- den by the policy and is there taken sick so that he cannot return within the specified time, the policy is forfeited under the condition, is doubtful. In one case * the insured was restricted from being in certain territory after a specified •date. About a month before the latter date he, being in such territory, was taken siok and, beingtoo ill to travel, remained ■where he was until after the limit of time expired, when he ■died. The court held that the sickness was an act of God which saved the condition. In a later case in the same State,** it was held that, if a person, already in feeble health, goes beyond the resti'icted limits and remains there until he is too fooblo to return, the impossibility of return cannot be al- leged as an excuse for violating the condition for the insured took the ehaiiees.' The court says:^ "The policy con- tained a provision that it should be voiil, null and of no offeet ; in case Starr, whose life was insured, should, be- tween the first day of July and the first day of November in anyyear, visit any part of the United States lying south of the southern boundaries of Virginia and Kentucky, withoutthe written consent of the company. In November, 18i)9, he went to Louisiana and remained there until he > Rftyustord «. Royal lus. Co., SS N. V. SS6; IJ. & S. 453. *lbid. * dialer r. Conn. Mut. L. Ins. Co., 82 N. Y. 427. But in this case part of the court dissented. Every year, however, this question Is assuming less importance, if lttev«n now has not become meaningless. ♦ Baldwin e. New York Life Ins. Oo , 8 Bosw. 630. • Brans ». Uuito.1 States Lite Ins Co., 6* N. Y. 304; affirming 8 Hun, *87. • Wheeler ». Conn. Mut. L. Ins. Co. 82 N. Y. 543, wliere both of the preceding iMsos are roforred to. ' Gvansv. United Suites Life Ins. Co.sH^ra. 82 497 § 324 CONDITIONS WHICH AVOID THE RIGHT. died, on the 18th day of March, 1872. The defendant alleged this as a breach of the policy and refused payment upon this ground. He had the written permit of the de- fendant to go to New Orleans and remain there until the- the first day of July, 1870. The claim on behalf of th& plaintiff is that he (insured) became so sick and feeble that he could not return, and hence that his return was rendered impossible by the act of God, and that therefore his absence was excused and there was no breach of the policy. Evea if this claim were otherwise valid the facts do not sustain it. The only proof upon the subject is that he met with an accident before going south ; that his health was very poor in the summer of 1870, and ' he could only ride out tO' the plantation in which he was interested in a buggy, and ride back, not getting out of it, and was never any better.' No witness testified that he was to too unwell to return north, or that he made any effort to return, and his condi- tion before July 1st was not described. To bring the case within the supposed rule there should have been proof that for some time before July first he was unable to travel by any of the usual modes ; not that it was merely inconvenient for him to travel, but impossible. He was bound to return if he could travel by short stages, or by incurring unusual expense to secure comfort, safety and convenience. But another answer to this claim is that he took the chances of being unable to return. He went south for business pur- poses, knowing that the policy would be avoided if he did not return by the first day of July. He had the right to go and remain there until July first without the permit of the company. He obtained that that he might, without violat- ing another condition in the policy, go and return upon the ocean if he desired to. He was feeble when he went and he could not go so far south that he could not return, and after remaining there until he Wiistoo feeble to return, enable the' holder of the policy to claim that his return was rendered 498 CONDITIONS WHICH AVOID THE RIGHT. § 325 impossible by the act of God, and that thus the breach of the condition was excused." § 325. Change of Occapation to one more Hazardous or one Prohibited. — A condition that the insured shall not change his occupation to one more hazardous is not vio- lated if the insured casually engage in a different business. As for example, if a teacher temporarily work upon a build- ing he is erecting for himself and is killed while so doing.^ Or if a slave, who was a laborer in a tobacco warehouse, be MUed while being removed to a plantation north of New Orleans, the policy forbidding a removal to more southern localities.* If the insured engage in any occupation pro- hibited by the terms of the policy it will be void, if so pro- vided in the contract.' A prohibition against entering the military service is not unusual. It has been held that this does not apply where a person occupied a mere clerical po- sition in the office of the adjutant-general,* but does if the insured connects himself in any way with the belligerent force,* and it is immaterial whether the service was volun- tary or involuntary.* It has been held that whether being a chaplain in the army is being in the " military service " within the meaning of these words in a policy of life insur- ance is a question for the jury.' In one reported case* the contract provided that the insurance should be avoided if death resulted from any of the casualties of war or re- bellion, or from belligerent forces in any place where the insured might be. The insured was killed just after the > Stone V. United States Casualty Co., 34 N. J. L. 371. * Snnuners v. U. S. Annuity, etc., Co., 13 La. Ann. 504. 'Northwestern Mut. Life Ins. Co. ». Amerman, 119 111.329, 10 N» East. Kep. 225; 7 West. Rep. 712. * New York Life Ins. Co. v. Hendren, 24 Gratt. 540. » Mitchell V. Mut. L. Ins. Co., cited Bliss L. Ins. 699. » Dillard v. Manhattan L. Ins. Co., 44 Ga. 119. ' Mut. Ben. L. Ins. Co. v. Wise, 34 Md. 582. » Welts V. Conn. Mut. L. Ins. Co., 46 Barb. 412. 499 § 326 CONDITIONS WHICH AVOID THE EIGHT. oivil war by a roving guerrilla band. The court held that the proviso did not attach for it was the same as if the in- aured had been murdered by a robber, the band in question being mere robbers. § 326. Intemperance. — There may be in the policy an agreement as to the habits of the insured. The usual con- ditions are that the policy shall be void if the insured be- comes " so far intemperate as so impair his health or induce delirium tremens J' In a case in Illinois^ the bene- ficiary certificate given to a member of an order, witnes^ied that he was entitled to certain rights and privileges of the order, and the same was issued upon the express condition that he should, while a member of the order, faithfully maintain his pledge of total abstinence, and comply with all the laws, rules, regulations and requirements of the order, otherwise it to be of no effect, and if the member should die in good standing the beneficiary should be entitled to certain benefits. The Supreme Court held that as the requirements in the condition were used conjunct- ively, a compliance with all of them was necessary to a re- covery, and that a violation of the pledge of total abstinence, alone, would bar a recovery by the beneficiary.'' Where the application contained a recital that if the applicant, at that time represented to be temperate, " become as to habits far different from the condition in which he is represented to be, so as to increase the risk on the life insured, the policy shall become null and void," and the policy ex- pressed " that if any of the declarations and statements made in the application shall be found in any respect un- true," that it shall be void; it was held * that this was an ' Royal Templars of Temperance 7). Curd, 111 III. 284. 2 See also Hoglns v. Sup. Couno. Champions of Bed Cross (Cal.), 18 Pac Eep. 125. ' Boyle V. Phoenix Mat. L. Ins. Co., Ramsay's App. Cases (Lower Canada), 379. 500 CONDITIONS WHICH AVOID THE RIGHT. § 326 express warranty that the insured would not alter his habits, and it having been proved that he had become so far intemperate as to increase the risk, the policy was avoided.^ In a case in the United States Circuit Court* the court instructed the jury to the effect that the impair- ment of health, contemplated by the condition that the policy shall be void if the insured becomes " so far intem- perate as to impair his health or induce delirium tremens," is not necessarily permanent or irremediable, nor is it the temporary indisposition or disturbance usually resulting from a drunken debauch, but it is the development of dis- ease, or the impairment of constitutional vigor, by the use of intoxicating beverages in such a degree and for such a time as is ordinai-ily understood to constitute intemperance. "A single excessive indulgence in alcoholic liquors is not intemperate, but there must be such frequency in their use, continued for a longer or a shorter period, as indicates an injurious addiction to such indulgence." But, upon appeal to the Supreme Court of the United States,* the case was reversed, the court saying: " The effect of these and other instructions was that the policy should be void if the in- sured became so far intemperate as to impair his health, was not broken unless intemperance became the habit or rule of his life after the policy was issued. The jury may have believed — and there was some, we do not say conclusive, evidence to justify them in so believing — that the efficiently controlling cause of the death of the insured was an exces- sive and continuous use of strong drinks for several days and nights immediately preceding his death ; 3'et they were not at liberty, under the instructions, to find that he became sd far intemperate as to impair his health, unless it further appeared that his intemperance in the use of alcoholic stim- » See Knecht v. Mut. L. Ins. Co.. 90 Pa. St. 118; Schultz v. Mut. L. Ins. Co., 6 Fed. Rep. 672. a I>aveT r. ^tna L. Ins. Co., 20 Fed. Rep. 482. » itna L. Ins. Co. v. Da vet. 123 U. S. 739; 8 Sup. Ct. Eep. 833. 501 § 326 CONDITIOKS WHICH AVOID THE EIGHT. ulants covered such, a period of time as to constitute the habit of his life. This construction of the contract is, in our judgment, erroneous. If the substantial cause of the death of the insured was an excessive use of alcoholic stim- ulants, not taken in good faith for medical purposes or under medical advice, his health was impaired by intemper- ance, within the meaning of the words, ' so far intemperate. as to impair his health,' although he may not have had de- lirium tremens, and although, previously to his last illness, he had not indulged in strong drink for such a long period of time or so frequently as to become habitually intemper- ate. Whether death was so caused is a matter to be deter- mined by the jury under all the evidence." ^ Under a somewhat similar clause the Supreme Court of Pennsyl- vania held'* as follows : ' ' The whole defense arises under this clause in the policy: ' It is further agreed and understood, that if he shall become so far intemperate, as to seriously or permanently impair his health or induce delirium tremens, then this company shall not be liable.' Thus, no degree of intemperance was sufficient to defeat a recovery unless it had the effect ' to seriously or permanently impair his health or induce delirium tremens.' Any less effect was insufficient. No offer to prove that Eohkopp's intemper- ance produced any such effect was rejected. The rejected offer covered by the first assignment [of errors] clearly shows that the company did not consider habitual intem- perance any ground for refusing a risk. It was to prove that Kohkopp was an habitual drunkard for many years prior to and at the time the insurance was taken ; that he had created an appetite which had become fixed upon him; but that it had not seriously impaired his health at that time. The offer did not propose to show that he thereafter 1 See Northwestern Ins.^Co. v. Muskegon Bank, 122 TJ. S. 502; 7 Snp. Ct. Eep. 1221. 2 Odd-fellows' .Mut. L. Ins. Co. v. Bohkopp, 9t Pa. St. 59. 502 CONDITIONS WHICH AVOID THE EIGHT. § 327 became so intemperate as to either ' seriously or perma- nently impair his health.' It was to show ' by experts that the amount he had drank before and the amount he had drank afterwards, was sufficient to seriously impair a man's health.' The capacity of persons to drink liquor is so unequal, and the effect is so different on different individuals, it by no means follows that a quantity sufficient to affect some other man's health had the same effect on the health of Kohkopp. The question in issue was, did his intemperance so affect him? The court operfed the door wide and permitted the plaintiff in error to give all the evidence offered of Boh- kopp's intemperate habits and of the effect on him. That he was habitually intemperate was not denied or contro- verted. It was clearly proved. The contention was, whether its effect was such as to bring him within the clause of the policy which would prevent a recovery. Pos- sessing a constitution and health, which habitual intemper- ance for so many years had been unable to seriously injure, showed a capacity to withstand its action, that justly con- &ied the evidence to the effect the liquor had on him, and not what effect it might have on some other person." A specific stipulation in a separate clause of a policy of life insurance, that if the assured shall become intemperate to a certain degree the company may cancel the policy, and thus absolve itself from liability, will control a general stipulation that such a degree of intemperance shall work an absolute forfeiture.^ Where the assured covenanted not to "practice any pernicious habit that obviously tends to shorten life," it was held that an excessive use of alcoholic liquors was such a pernicious habit as avoided the policy.' 327. Death from Specified Causes may avoid, the Pol- icy. It is usual in this country for a condition to be in- serted in life insurance policies that the insurer shall not be 1 Northwestern Mat L. Ins. Co. v. Hazelett, 105 Ind. 212. » Schultz V. Mut. L. Ins. Co. of New York, 6 Fed. Eep. 672. 503 § 328 CONDITIONS WHICH AVOID THE RIGHT. liable if the death of the assured be caused by intemper- ance, suicide or violation of law, or if he die at the hands of justice. It was formerly a common provision th^t the policy should be void if the insured died " on the high seas." Interesting questions have arisen upon the con- struction to be given this condition and what facts are necessary to bring the case within the proviso so as to re- lieve the insurer. These questions wiU now be examined, for they have been discussed by the courts with considera- ble logic and research. § 328. Intoxicants. — Where the policy provided that it should be void if the " death be caused by the use of in- toxicating drink or opium," it was said by the Supreme Court of Maryland * that this means ' ' that the things pro- hibited should be the direct cause of the death in order to avoid the policy." The fair deduction from a decision of the Supreme Court of the United States ^ is that, under a similar condition, the use of intoxicating drink or opium must be the substantial cause of death. In an English case the policy provided that the assurance should not extend to any death or injury happening while the assured was under the influence of intoxicating liquor, or exposing himself to any unnecessary danger or peril. The assured, being more or less under the influence of liquor, accosted a woman in the street, and, persisting in so doing in the face of remon- strances, was knocked down by a man in whose company she was, and received injuries from which he died. It was held * that it was not necessary that the assured should be under the influence of intoxicating liquor at the time of his death, as well as at the time when the injury was sustained, but that it was sufficient to show that he was under such in- fluence when he met with the injury from which death re- 1 Mutual Life Ins. Co. ». Stibbe, 46 Md. 302. ' ^tna L. Ina. Co v. Davey, 123 U. S. 739; 8 Sup. Ct. Eep. 331. « Mair v. EaUway Passengers' Assn. Co., 37 L. T. 356. 504 CONDITIONS WHICH AVOID THE RIGHT. § 328^^ suited afterwards. It was also said that the words, under the influence of intoxicating liquor, means such influence as to disturb the quiet equable exercise or a man's intellectual faculties. Also that the latter part of the proviso, with re- gard to willful exposure to peril, should be limited to dan- gers ejusdem generis with those recapitulated in the earlier part of the clause, and did not extend to the exceptional circumstances under which the insured met his death.* In. a case decided by the Supreme Court of Iowa,* the policy provided that it should be void if the insured should die "by reason of intemperance from the use of intoxicating^ liquors." The deceased was given to periodical debauches. During one of these, and while suffering from delirium tremens, the insured escaped from those who had him in charge, ran into the open air and through the streets in in- clement weather, without clothing, contracting cold from such exposure. This cold resulted in congestion of the lungs and brain, from which he died. It was held that these facts supported the conclusion that the death was caused by intemperance. The same court in a previous consideration of the same case,* approved an instruction of the lower court that the jury, in order to sustain the defense that the death was caused by liquor, must find more than that the death was only contributed to by the intemperate use of drink, and that the sole or paramount cause of the death was the intemperate use of intoxicating liquors. The court said : " The defendant claims that ' if intemperance shortens life it is a cause of death within the meaning of the policy,' and that the policy is thereby avoided. It rarely, if ever^ happens, that the intemperate use of intoxicating drinks is- indnlged in for a considerable period without, to some ex- tent, shortening life. The consequences of the construc- > See Shader v. RaUway Passengers' Assn. Co., 3 Hun, 424; 5 N. T^ St. C. 643; Macrobbie v. Accident Ins. Co., 13 Scot. L. Rep. 391. 2 Miller ». Mut. Benefit Ins. Co., 34 la. 222. » Miller «. Mut. Benefit Ins. Co., 31 la. 235. 505 ■§ 328a CONDITIONS mtiich avoid the eight. tion contended for by the defendant would therefore be, that an insurance company which had assured the life of one known to be intemperate, and which had charged a higher rate of insurance in consequence of such fact, could exonerate itself from liability upon the policy by showing that the life of the assured had been shortened by intem- perance. A sound principle does not lead to consequences ■so unjust and unreasonable. A proximate cause of an ef- fect is that which immediately precedes and produces it, as ■distinguished from the remote, mediate or predisposing cause. When several causes contribute to death as a re- sult, it may be extremely difficult to determine which was the remote and which the immediate cause, yet this diffi- culty does not change the fact that the death is to be at- tributed to the proximate and not the mediate cause. Nor is the difficulty in questions of this kind any greater than that which arises in questions of negligence, contributory negligence, and many others which are constantly the sub- jects of judicial investigation." ^ § 328a. Suicide. — Some of the most interesting discus- sions to be found in the reports are those of the construc- tion to be given a clause in a life insurance policy absolving the company from all liability if the insured die " by his •own hands " or " by suicide." The policies of the various companies greatly differ in their language in regard to the voluntary death of the insured, as they have endeavored to except from their undertaking suicidal deaths. The sub- ject is of greater import-ance to life insurance companies than to benefit societies, for very few of the latter attempt to distinguish between deaths that are suicidal and those resulting from other causes. It is unnecessary to even at- tempt any argumentative or philosophical discussion of the 1 HolterotE v. Mut. Ben. L. Ins. Co. (Cin. Superior Ct.), 4 Big. L. 4 A. Ins. Cas. 395; Eanney v. Mut. Ben. L. Ins. Co., cited May on Ins., § :302, tried in U. S. Cir. Ct. Dist. of Mass. 506 CONDITIONS WHICH AVOID THE RIGHT. § 329 subject, but to briefly review some of the leading cases upon the subject so that a few general rules may be inferred. § 329. Where Sane Person Takes His lilfe by Acci- •dent. — In the first place, it seems settled that if a sane person accidentally, or by mistake, does any act which oauses his death, it is not within the exception of a proviso that the policy shall be void if the insured die by his own hands " sane or insane," " voluntarily or otherwise." A leading case on this subject is Penfold v. Universal L. Ins. Co.* In this case the Court of Appeals of New York said : -" The ordinary clause in life policies, that the insurer shall not be liable in case the person whose life is insured shall 4 Allen, 96. 515 § 336 CONDITIONS WHICH AVOID THE EIGHT. preted literally, it would seem to be reasonable to hold that they were intended to except from the policy all cases of death caused by the voluntary act of the assured, when his deed of self-destruction was the result of intention, by a person knowing the nature and consequences of the act, al- though it may have been done under an insane delusion, which rendered the party morally and legally irresponsible, incapable of distinguishing between right and wrong, and which, by disturbing his reason and judgment, impelled him to its commission. If the suicide was an act of voli- tion, however excited or impelled, it may in a just sense be said that he died by his own hand. But beyond this, it would not be reasonable to extend the meaning of the pro- viso. If the death was caused by accident, by superior and overwhelming force, in the madness of delirium, or under any combination of circumstances from which it may be fairly inferred that the act of self-destruction was not the result of the will or intention of the party adapting means to the end. and contemplating the physical nature and ef- fects of the act, then it may be justly held to be a loss not excepted, within the meaning of the proviso. A party can- not be said to die by his own hand, in the sense in which those words are used in the policy, whose self-destruction does not proceed from the exercise of an act of volition, but is the result of a blind impulse, of mistake or accident, or of other circumstances over which the will can exercise no Mill V Rebstock, 29 Minn. 380 ; Darrow u. Family Fund Soc, 42 Hun, 2t5; Freeman v. National Benefit Soc, Id. 252; Fitch ». Am. Popu- lar Life Ins. Co., 59 N. T. 657; Patrick v. Excelsior L. Ins. Co., 67 Barb. 202 ; 4 Hun, 263. 2 Darrow v. Family Fund Soc, supra. > Supreme Commandery, etc., v. Ainsworth, 71 Ala. 436; 46 Am. Eep. S32. * Amicable Soc. v. Bolland, 2 Dow. & C. 1; 4 Bligh (n. s.), 194. « Borradaile v. Hunter, 5 M. &G. 639. 518 CONDITIONS WHICH AVOID THE EIGHT. § 339 a case in North Carolina ^ the policy was on the life of a slave and ODnditioned to be void if the insured should meet death " by means of invasion, insurrection, riot or civil commotion, or of any military or usurped authority, or by the hands of justice." The slave was killed in an armed and violent resistance of the authority of an offi- cer and the Supreme Court of that State held that the policy was not avoided. § 339. Death in "Violation of Liaw. — In a case where the policy was conditioned to be void if the insured should ■die in consequence of a duel, or of the violation of law,^ the Court of Appeals of New York said: " It seems to be clear that a relation must exist between the violation of law and the death to make good the defense; that the death must have been caused by the violation of law." This rule was followed in a later case in the same court * in which the facts were these: Wisner Murray, the insured, and his brother planned an assault upon one Berdell, in pursuance of which the brother seized Berdell by his arms, from behind, and Wisner beat him over the head and face with a rawhide. Berdell drew a pistol and Wisner fled, but was shot and killed by Berdell as he was entering an ad- joining room. The court held that whether the discharge of the pistol was intentional or accidental the death was the result of the violation of law by Wisner Murray and the policy was held void. So where the insured was killed while making an unprovoked assault the policy, under a similar condition washeldvoid.* So, under a similar proviso the policy was held void where the insured was killed by his brother while making an assault upon the wife > SpmUl V. North Carolina, etc., Ins. Co., 1 Jones L. 126. » Bradley r. Mnt. Ben. Life Ins. Co., 45 N. T. 422. " Murray v. New York Life Ins. Co., 96 N. Y. 614. * WolfE V. Com. Mut. Life Ins. Co., 5 Mo. App. 236. 519 § 339 CONDITIONS WHICH AVOID THE RIGHT. of the latter.^ In a case decided by the Supreme- Court of the United States ^ the policy was to be void if death was caused by " dueUng, fighting, or other breach of the law on the part of the insured, or by his willfully exposing himself to any unnecessary danger or peril." The- insured and another person were driving sulkies in com- petition alongside of each other at a horse race for money^ such race being illegal by statute, and on a collision occurring, the insured jumped to the ground from his sulky, and was dear from the sulky reins and harness, on his feet and uninjured, and spoke instantly to his horse to stop, and then started forward to get hold of the reins, which were hanging across the axle-tree. When he had hold, or was attempting to get hold of them he was tangled in them,, and falling down was dragged along the ground and strik- ing a stone violently with his head was killed. The court held that no recovery could be had on the policy. It was claimed that the death was caused by a new force or cause ; but Judge Miller, in delivering the opinion of thfr court, said: " But we do not think this new force or cause is sufficiently made out by this verdict. The leap from the sulky and securing the reins, and the subsequent fall and injury to Seaver, are so close and immediate in their re- lation to his racing, and all so manifestly part of one con- tinuous transaction, that we cannot, as this finding pre- sents it, say there was a new and controlling influence tO' which the disaster should be attributed. K he had been landed safely from his sulky and, after being assured of his position, had, with full knowledge of what he was doing,, gone to catch the animal, his death in that pursuit when the race was lost, might have been two remote to bring the cas& within the exception. But as the finding presents it, we cannot say that the accident was not caused by the I Bloom o. Franklin Life Ins. Co., 97 Ind. 478. » Ins. Co. B. Seaver, 19 Wall 631. 520 CONDITIONS WHICH AVOID THE BIGHT. § 339" race, which was itself a violation of the law, and which might still have gone on had he caught hrs mare in time.'' Bat where the insured was killed by the husband of the woman with whom he had immediately before committed adaltery, the Sapreme Court of New York ' held that it could not be said that the insured died in the violation of law, because the killing was not done while the insured was^ in the act of adultery, nor in the defense of person or prop- erty, and therefore was a crime and was not a natural and legitimate effect of the act of adaltery. And where the condition was that the policy should be void if the assured should die " in the known violation of any law of this- State," the Supreme Court of Missouri ^ held that under this clause the policy would not be avoided, if the insured was killed after retreating from an altercation which he had commenced, under circumstances which would make the slayer guilty of felonious homicide. The facts were that one CoryeU was talking to a man, Wilson, near the store of a brother of Harper, the insured. The deceased spoke to Wilson and asked him if he knew to whom he was talk- ing and to keep his hand on his pocket. Coryell inquired if that insult was intended for him and Harper said it was. The parties then quarreled, the deceased drew a single barreled pistol and snapped it at Coryell who thereupon drew a revolver and advanced on Harper, who threw his pistol and struck Coryell and retreated into the store. Coryell shot and missed him while he was in the store. Then the deceased retreated under a stairway and picked up a stick of wood which he raised in a threatening posi- tion over his head, but did not advance on Coryell, nor attempt to use the stick in any other manner. Coryell then fired again and killed the deceased. The whole diffi- culty was one continuous quarrel. The court said that life • 1 Goetzman v. Conn. Mut. L. Ins. Co., 3 Hnn, 515; 5 N. T. St. C- 572. « Harper v. Phoenix Ina. Co., 19 Mo. 506. •§ 339 CONDITIONS WHICH AVOID THE EIGHT. insurance companies take the subject insured with his flesh, blood and passions and that " the dangers to which the lives of men are exposed from sudden ebullitions of feel- ing, are a lawful matter of insurance." It concluded: "The facts of this case clearly show that the person slay- ing flarper was guilty of a crime. There is no proof of the fact, set up as a bar that Coryell slew Harper in self- defense. Harper had abandoned the conflict, retreated as far as possible, and endeavored to screen himself from the attack of his assailant. His having a stick of wood in his hand at the time he was slain, did not in the least, extenu- ate the guilt of Coryell. Under the circumstances. Harper would have been justified 'had he slain Coryell. * * * Now, if one dies under circumstances which would justify him in slaying his adversary, and when the person causing his death is, thereby, guilty of a felony, is it not a gross perversion of language to say that that person died in the known violation of a law of the land." ^ A series of inter- «sting decisions upon the question were given in suits brought upon policies upon the life of one ClufE, which were conditioned to be void if the insured should die " in the known violation of any law of these States or of the United States, or of the said provinces, or of any other oountry which he may be permitted under this policy to visit or reside in." Cluff was killed in Louisiana by one Cox. The father of the latter owed Cluff a debt and Cluff meeting the son driving a wagon and horses asked him if they were going to move. The reply was yes. He then asked when they were going to pay his debt ; the son said they were not going to pay it at all. The deceased then seized the horses and began to unhitch them. The testi- mony was conflicting whether the boy and Cluff had a scuffle and blows, after which the boy started to the house ' This rule was again affirmed In Overton v, St. Louis Mut. L. Ins. Co., 39 Mo. 122. 522 CONDITIONS WHICH AVOID THE RIGHT. § 339 and then tarned about and shot, or whether the boy got off •of the wagon and after some talk started to go to the house and then turned and fired, but it was agreed that he ran -about three rods, drew a pistol and fired, killing Cluff. One suit was brought in Massachusetts ^ and four trials were had. Upon the first trial it was held as a matter of law that upon the evidence the plaintiff must recover. This was reversed by the Supreme Court,* the court holding that the jury were to say whether the insured, when lie was shot, was engaged in a criminal violation of law, known by him to be so, and that such violation might have been reasonably expected to expose him to violence which might endanger life. On a second trial the jury on the ^ame evidence found for the plaintiff. On appeal the Supreme Court held * that the company must prove, in •order to avoid the policy on this ground, that the insured died while engaged in a voluntary criminal act, known by him at the time to be a crime against the laws of such State or country. That those acts which are ■criminal 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 he will be presumed to have known that they are so. If there is evi- dence tending to show that the insured was killed by l)eing shot while engaged in the commission of a robbery* and assault and battery, and it is in dispute, whether, if he uad been so engaged, he had desisted therefrom, it must .appear, in order to exonerate the company from liability, that such criminal act was not so far completed as to render the shooting a new and distinct event, rather than a mere •continuation of the original affray, and that the death was in consequence of the crime of the insured; but it need > ClnfE V. Mut. Benefit L. Ins. Co., 13 AUen, 308; 99 Mass. 317. ' 13 AUen, 308, supra. -» 13 Allen 308, tupra. 523 5 339 CONDITIONS WHICH AVOID THE RIGHT. not be proved that the insured knew or had reason to> believe that his criminal act would or might expose his life to danger. On the third trial the jury also found for plaintiff but the Supreme Court held ^ that instruc- tions were erroneous which permitted the jury to- understand that the policy was not avoided, although the insured was killed while doing what would constitute- either robbery or larceny, if he acted under a belief which would avoid the otherwise criminal character of his acts,. and that such a belief need not be a belief in his legal right to do the acts, but might be a belief in a right of self-re- dress by reason of the disturbed condition of the country^ the inefficient administration of the laws, or otherwise. Upon an appeal after a fourth trial, in which a verdict was^ again found for plaintiff, ^ the Supreme Court held that the- fact that the judge did not comply with a request to in- struct the jury" that the insured must be presumed to have- known the civil law of the State where he was killed was- not a valid ground of exception, if he did instruct them that the insured had no right to do the acts in the commission of which he was killed, and that he must be presumed to have^ known the criminal laws of the State. In the opinion the^ court says: "The judge having stated to the jury that. Cluff had no right to take the property, the material ques- tion to be submitted to them on this point was, whether he took it with a felonious intent, and not whether hfr took it with a knowledge that he was violating the civil law of the State." The court, in these cases, held that the- proviso must be construed to refer to a voluntary criminal act- on the part of the insured, known by him at the time to be a. crime against the law of the State, and not to mere trespass^ against property or infringements of civil laws to which no- criminal consequences are attached. This conclusion waa » 99 Mass. 317. * 99 Mass. 317, supra. 524 CONDITIONS WHICH AVOID THE RIGHT. § 339 %ased upon the natural import of the words "known violation ■of law" and upon their being found immediately follow- ingthe words '• by the hands of justice." In this view the court agrees with the doctrine of Harper v. Phoenix Ins. Co.^ Suit was subsequently brought in New York upon another policy issued by the same Company upon the same life, and, iipon substantially the same evidence as presented in Mas- sachusetts, the lower court ordered judgment in favor of Hie defendant. The Supreme Court affirmed this ruling, but the Court of Appeals reversed it,^ the majority of the Kjourt holding that it was error not to allow the jury to pass upon the question whether the death of the insured was •caused by a known violation of law upon his part, and whether the act of the deceased which produced the death was a natural, reasonable or legitimate consequence of the Act of the insured. The majority of the court inclined to foUow the reasoning of the Massachusetts cases, holding that the proviso did not extend to mere trespasses. The opinion concludes thus: " It would hardly be contended that if one should intentionally and deliberately kill another in consequence of some slight violation of a civil right, such as walking across his land without his permission, or •other trivial trespass, the case would faU within the proviso, for no one would hesitate to say, that in the case supposed, the unlawful act of the deceased was a totally inadequate ■cause for the killing. Yet between such an act as that, ^nd one which would in law justify the killing of the of- fender, there are an infinity of supposable cases involving different degrees of provocation, which cannot be measured £o as to determine, as matter of law, their adequacy to pro- vince a fatal result; and it can hardly be laid down as a rule of law, that an attempt to take one's horses for debt, without process, but without any threat of personal violence, J 19 Mo. 506, supra. * Bradley v. Mutual Benefit L. Ins. Co., 45 N. Y. 422. 525 § 339 CONDITIONS WHICH AVOID THE RIGHT. is of itself an adequate cause for intentionally killing the offender, and that a killing during or immediately after such an attempt, must necessarily be held a legitimate consequence of the act. Such an act may lead to vio- lence, and if any act of violence of the character which would naturally be resorted to, as a measure of resistance, should result in death, the necessary connection between the original illegal act, and the death, might be estab- lished. But the intentional killing of another with a. deadly weapon under such circumstances, is a totally differ- ent affair, and cannot be held as matter of law, to be a natural or reasonable result or consequence of the original offense." The minority of the court dissented from these views, holding that " when the death occurs during the known violation of law by the assured, when such violation, eminently tends to violence dangerous to his life, the case comes within the proviso." In a comparatively recent case in Indiana,^ the Supreme Court of that State disap- proved the doctrine of the Massachusetts' court in the Cluff" case and approved that laid down by the dissenting judges in the New York case as above, holding that death in the known violation of any law criminal or civil would make the- policy inoperative. " In our opinion," says the court, " the law is this : A known violation of a positive law, whether the law is a 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 in- crease the risk." The cases all agree that the wrongful act must have been the proximate cause of the death. The loss of life must be connected with the crime as its conse- quence. By reason of the guilty act the death must have occurred, so that without its commission it would not have 1 Bloom V. Franklin L. Ins. Co., 97 Ind. 478, supra. 526 CONDITIONS WHICH AVOID THE RIGHT. § 340 taken place. Whether the violation of law was the proxi- mate cause of death and whether it was an act increasing the risk, must in general be determined from the facts of the particular case. There must be some causative connec- tion between the act which constituted the violation of law and the death of the assured.^ If the policy provides that it shall be void if the insured " die while violating any law," it has been held that the death must occur at the time of the criminal act, not after. ^ In this case the assured robbed the State treasurer and while leaving the building was killed by a policeman. The court held that the words meant death in the actual violation of law, and that in this case, as the act had been completed, and the death occurred afterwards, there was no forfeiture. Where the policy was to be void if death happened • • while engaged in or in consequence of any unlawful act," it was held that it cannot be said as a matter of law that if a soldier, insured thereunder, deserts and is shot, as alleged, in self-defense, by a police officer who is attempting to arrest him, he meets death while en- gaged in an unlawful act.^ § 340. Where Recovery is Precluded because of Pub- lic Policy. — In a case in Massachusetts the insured volun- tarily, and without any justifiable medical reason, sub- mitted herself to an illegal operation with intent to cause an abortion and died from the consequences of the miscar- riage thereby effected. The court held that there could be no recovery on the ground of public policy,* say- ing: " No recovery can be had in this case, because the ' Bloom o. Franklin L. Ins. Co., 97 Ind. 478; CluS v. Mut. Ben. L. Ins. Co., 13 Allen, 308; 99 Mass. 317; Bradley v. Mut. Ben. Ji. Ins. Co., 45 N. T. 422; 3 Lans. 341 ; Murray o. New York L. Ins. Co., 96 N. Y. 614; Ins. Co. V. Seaver, 19 Wall. 531. » Griffln v. Western Mut. B. Assn., 20 Neb. 620; 31 N. W. Kep. 122. » Utter V. Travelers' los. Co. (Mich.), 32 N. W. Rep. 812; 9 West. Bep. 108. * Hatch V. Mutual Lite Ins. Co., 120 Mass. 550. 527 <§ 340 CONDITIONS WHICH AVOID THE EIGHT. ;act on the part of the assured causing death was of such a ■character that public policy would preclude the defendant from insuring her against its consequences ; for we can have no question that a contract to insure a woman against the risk of her dying under, or in consequence of an illegal operation for abortion, would be contrary to public policy, and could not be enforced in the courts of this common- wealth." 1 1 The conrt cites Amicable Society «. BoIIand, i Bligh (n. s.), 194; jHom V. Anglo-Australian AsB. Co., 30 L. J. (n. b.) Cli. 611; Moore e. "Woolsey, 4 E. & B. 243. 628 CHAPTER XI. PEEMIUM, ASSESSMENTS AND DUES. $ 350. The Consideration ol a Life Insurance Contract is called Pre- minms or Assessments. 351. All the Premiums the'Consideration : Insurance Contract not one from Year to Year. 352. Non-Payment of Premium will not EfEect a Forfeiture unless so Stipulated. ■353. Policy does not Attach xmtil First Premium is Paid if the Contract so Provides. 364. Time of Payment of Premium is of the Essence of the Contract. -355. When Punctual Payment is not Excused. 356. EfEect of War on the Contract. .357. No Absolute Liability on the Part of the Assured to Pay the Pre- mium, if Payment is only a Condition and there is no Promise to pay. -358. Time of Payment of Premium may be Extended. 359. Excuses for Non-Payment. -360. When Company Must give Notice of Maturity of Premium. -361. Receipt of Premiums After they are Due: Usage. 362. Company Must not Mislead Assured. -363. EfEect of Prospectus. 364. Refusal to Receive Premium. -365. Dividends: Mutual Accounts. 366. Credit for Premiums. 367. Payment to Agent. -368. When the Day of Payment Falls on Sunday. -369. Premium Need not Always be Paid in Money: What Amounts to Payment. -370. Payment of Premium After Death of Insured: Days of Grace. 371. When Note is Taken for Premium. ■372. The Same Subject : Premium Notes Proper. -373. Non-Forfeitable Policies. 374. The Massachusetts Non-Forfeiture Law. 375. Stranger may Become Liable for Premium. -376. When the Company Wrongfully Declares a Forfeiture of the Policy. .377. Assessments in Benefit Societies Must be made In Exact Accord- ance with their Laws : Strict Construction. 34 529 § 351 PREMIUM, ASSESSMENTS AND DUES. 378. Wlio Liable for Aseessments. 379. Notice of Assessments. 380. The Same Subject: Contents of Notice. 381. The Same Subject: Service of Notice. 382. ITrom What Time Period Allowed for Payment of Assessments- Dates. 383. Manner of Paying Assessment. 384. What does not Excuse Non-payment. 385. Consequences of Non-Payment: Suspension: Reinstatement. 386. To Whom Money Collected on an Assessment Belongs. 387. Power to Accumulate Surplus from Assessments. 388. Power of Subordinate lodges to Waive Bequirements of Laws of the Order as to Assessments. 389. Dues. , § 350. The Consideration of a Liife Insurance Contract is Called Premiums or Assessments. — The consideration of a contract of life insurance is usually called premiums when paid to the ordinary life insurance companies and assessments when paid to mutual beneficiary societies. Neither the name given to this consideration nor the time of its payment, either in one sum, or annually, or upon the uncertain times of the deaths of the members of the society ,. affect the validity of the contract or make it any less one of insurance.* Nor can we see any reason why different rules should govern the payment of premium to regular companies from those that apply to the assessments of the benevolent orders, except so far as affected by the terms of the agreement between the parties. The contracts of the companies and those of the orders have substantial elements of similarity, and the same principles should be applied to both wherever practicable. The payment of the consideration is an important condition in all contracts of life insurance and the subject merits careful examination. § 351. All the Premiums the Consideration : Insurance Contract not on© from Year to Year. — There is a want » Ante, § 162 530 PREMIUM, ASSESSMENTS AND DUES. § 351 of harmony in the authorities as to the real nature of the contract of life insurance in respect tO the consideration. For example, the Supreme Court of Connecticut says: ^ "A contract of life insurance is a peculiar contract. It has no parallel and few analogies in all the business transactions of life. An ordinary life policy, like the one in suit, requir- ing the payment of annual premiums, consists of two parts and is divisible. The applicant, upon the payment of the first premium, effects an insurance upon his life for one year, and purchases alright to continue that insurance from year to year, during life, at the same rate. Whether he wiU continue it or not is optional with him. The premium for the first year pays for the risk during that year, and for the right to subsequent insurance. The rate of insur- ance for a single year is less than the annual premiums on a life policy. The difference continued, as it is supposed it will be, from year to year during life, may be regarded as the consideration for the right to cibntinue the insur- ance. * • * The defendants, for a valuable considera- tion, made an irrevocable proposition to insure the applicant during life upon certain terms and conditions. He was at liberty to accept or reject the proposition. If he accepted he was to comply with the condition and pay the premium on or before a given day. • * * ^^yQ regard the pay- ment of the premiums as a condition precedent to any subsequent liability on the part of the defendants." On the other hand, the better rule has been laid down by the majority of the Supreme Court of the United States as follows:^ "The contract is not an assurance for a single year, with a privilege of renewal from year to year by paying the annual premium, but it is an entire contract of assurance for life, subject to discontinuance and forfeiture for non-payment of any of the stipulated premiums. Such. > Worthington c. Charter Oak Life Insurance Co., 41 Conn. 399. « New York L. Ins. Co. ». Statham, 93 U. S. 24. 531 f 352 PEEMIUM, ASSESSMENTS AND DUES. is the form of the contract, and such is its character. It has been contended that the payment of each premium is the consideration for insurance during the next following year, — as in fire policies. But the position is untenable. It often happens that the assured pays the entire premium in advance, or in five, ten, or twenty' annual installments. Such installments are clearly not intended as the considera- tion for the respective years in which they are paid; for, after they are all paid, the policy stands good for the bal- ance of the life insured, without any further payment. Each installment is, in fact, part consideration of the entire insurance for life. It is the same thing where the annual premiums are spread over the whole life. The value of assurance for one year of a man's life when he is young, strong and healthy, is manifestly not the same when he is old and decrepit. There is no proper relation between the annual premium and the risk of assurance for the year in which it is paid. This idea of assurance from year to year is the suggestion of ingenious counsel. The annual premi- ums are an annuity, the pre-^ent value of which is calculated to correspond with the present value of the amount assured, ■ a reasonable percentage being added to the premiums to cover expenses and contingencies. The whole premiums are balanced against the whole insurance." ^ The payment of a premium in either case operates merely to continue the old contract.' § 352. Non-payment of Premium will not Effect a For- feiture Unless so Stipulated. — The parties to a contract of insurance are free to insert in it whatever conditions they please, provided there be nothing in them contrary to the ' Manhattan L. Ins. Co. v. Smith, 44 Ohio St. 156; Dungan v. Mut. Ben. L. Ins. Co., 46 Md. 469-492. s Mutual Ben. L. Ins. Co. v. Robertson, 59 nu 123, and cases cited; post, § 356. 532 PREMIUM, ASSESSMENTS AND DUES. § 353 criminal law or public policy,^ and consequently they may agree that the policy shall be forfeited for non-payment of premium at the appointed day. But, in the absence of any stipulation so providing, the non-payment of a premium will not effect a forfeiture.* The question of forfeiture arises oftener in cases where premium notes are given, and then the effect of non-payment has been uncertain under varying provisions of the contract, and will be considered under that division of the subject.* While aU the cases show that the courts construe provisions for forfeiture for non-payment of premium strictly, so as to prevent forfeiture if possible, they nevertheless uphold the contract and enforce it.* § 353. Policy does not Attach Until First Premium is Paid if Contract so Provides. — By signing the application and accepting the policy the insured is deemed to have had notice of, understood and agreed to the terms, limitations and conditions contained in the application and the policy, and if the latter provides that it shall not take effect until the advance premium is paid during the life time of the assured, then, unless such payment is made, the policy does not attach and the delivery of the receipt without payment avails nothing.* Delivery of the policy by an agent con- trary to instructions and by mistake will not make the company liable.* K, however, the custom of the agents to give credit was known and acquiesced in by the receipt of such premium after the time, the company will be taken to » Beadle r. Chenango Mnt. Ins. Co., 3 Hill (N. Y.), 161. * Woodfln V. AshevUle Mut. Ins. Co., 6 Jones L. 658 ; American Ins. Co. V. Klink, 65 Mo. 78. » Post, § 372. * Ala. Gold L. Ins. Co. v. Thomas, 74 Ala. 578; Monnd City M. L. Ins. Co. c. Twining, 12 Kan. 475. ' Brown v. Insnrance Co., 59 N. H. 298; Ormond v. Mut. L. Assn., 96 If. C. 158; 1 S. S. Bep. 796; Davis v. Mass. M. L. Ins. Co., 13 Blatchf. 462. * Charter Oak L. Ins. Co. v. Smith, 3 Cin. L. Bnl. 607. 533 § 354 PREMIDM, ASSESSMENTS AND DDES. have waived the requirement,^ and a general agent has power to waive this condition.^ But where the receipt of the premium is acknowledged in the policy the insurers will not be heard to deny the fact, unless they can show that the acknowledgment was made by fraud, error or duress.^ It has been held that payment of the first premium and ac- ceptance of the policy is a personal act and so, if a policy provide that it shall not take effect " until the advance premium shall have been paid during the life time of the person whose life is hereby insured," a payment of such premium by a third person, without the knowledge of the assured, is of no effect, although made with his money; and his administrator cannot ratify the act.^ § 354. Time of Payment of Premium is of the Essence of the Contract. — In life insurance contracts, if the policy is conditioned to be void if the stipulated premium be not paid at the appointed day, time is of the essence of the contract and if the premium be not paid the policy is void unless the condition be waived." And it does not avail that ' Tennant v. Travelers' L. Ins. Co., 31 Fed. Rep. 322; MUler v. Life Ins. Co., 12 WaU. 285. 2 O'Brien v. Union Mut. L. Ins. Co., 22 Fed. Rep. 586; Southern L. Ins. Co. V. Booker, 9 Heisk. 606; Goit v. National Protection Ins. Co., 25 Barb. 189. 8 Michael v. Mnt. Ins. Co., 10 La. Ann. 737; 111. Cent. Ins. Co. v. Wolf, 37 111. 354; Teutonia L. Ins. Co. v. Mueller, 77 111. 22; Consolidated, etc., Ins. Co. V. Cashow, 41 Md. 59 ; Goit v. National Protection, etc., Ins. Co., 25 Barb. 189; Kline v. National Ben. Assn., Ill Ind. 462;11 N. East. Rep. 620; 9 West. Rep. 284; Troy F. Ins. Co. v. Carpenter, 4 Wis. 20; Madison Ins. Co. V. FeUowes, 1 Disn. 217; 2 Disn. 128; Basch v. Humboldt, etc., Ins. Co., 35 N. J. 429; Calhoun v. Union Mut. L. Ins. Co., 3 Pugs. & B. (N. B.) 13. ■■ Whiting V. Mass. Mut. L. Ins. Co., 129 Mass. 240; citing Hoyt ». Mut. Ben. L. Ins. Co., 98 Mass. 539 ; Markey v. Mut. Ben. L. Ins. Co., 103 Mass. 78; Badger v. American Ins. Co., 103 Mass. 244; Thayer o. Middlesex Ins. Co., 10 Pick. 326; Piedmont & Arlington Ins. Co. v. Ewing, 92 U. S. 377. » Williams ». Washington L. Ins. Co.,' 31 la. 541; Ayer v. NewEn- 5H4 PREMIUM, ASSESSMENTS AND DUES. § 355 at the time the policy was taken out it was verbally agreed that the payment of the premium should be extended be- yond the time stated.* § 355. When Punctual Payment is not Excused. — An excuse for the payment of premiums, which is in the na- ture of a condition precedent or subsequent as the contract is looked at, only exists when the company has prevented performance of such conditions or payment, or has itself wholly refused to perform or wholly disabled itself from completing a substantial performance. The mere failure of the company to perform some of the obligations of the contract, which go to a part only of the consideration and which breach may be paid for in damages, is not sufficient. Nor is the breach of representations made during the pen- dency of negotiations for a contract actionable or an excuse for performance by the other party .^ Nor is it an excuse that the company has violated its charter, and in consequence of such wrongful acts become insolvent, so that it had be- come unsafe for the insured to pay further premiums, if the company was continuing to do its ordinary business in the ordinary way and was ready to receive premiums.* Nor that the company has in its hands an amount applicable to a dividend soon to be declared, which would, when so de- clared, belong to the insured.* Nor that the company re- gland Mat. I<. In. Co., 109 Mass. 430; Shaw c. Berkshire Ii. Ins. Co., 103 Mass. 254; Elein «. Ins. Co., lOi U. S. 88; Catoir v. Ajnerican L. Ins., etc., Co., 33 N. J. L. 487; MobUe L. Ins. Co. r. Prnett, 74 Ala. 487; Franklin L. Ins. Co. v. Sefton, 53 Ind. 380; Gaterman v. American L. Ins. Co., 1 Mo. App. 300; Secnrity L., etc., Ins. Co. v. Gober, 50 Ga. 404; Ala. Gold Life Ins. Co. v. Garmany, 74 Ga. 61. 1 Coombs V. Charter OakL. Ins. Co., 65 Me. 382. * Bogardns v. New York L. Ins. Co., 101 N. Y. 328. » Taylor v. Charter Oak X,. Ins. Co., 9 Daly, 489; 59 How. Pr. 468; 8 Abb. N. C. 331. • Mat. L. Ins. Co. of N. Y. Girard, etc. Co., 100 Pa. St. 172. 535 § 355 PREMIUM, ASSESSMENTS AND DUES. tains the policy aei the bailee of the insured.^ Nor that the- insurance company has failed to place the receipt for th& premium in the hands of the local agent.^ Nor the death of the local agent where, by the terms of the policy, the premiums are payable at the home office of the company, « « unless otherwise expressly agreed in writing, or to agents when they produce receipts signed by the president or secretary."^ It is no excuse for non-payment of premium that at the time the payment was to be made the assured was sick and delirious. In holding that this is not a case- where performance is prevented by act of God, the Supreme Court of Iowa says:* " There was no such impossibility of performing the contract in this case. It is true, it was im- possible for the assured at the time required therein to per- form it ; but he could have provided for its performance beforehand, and those of his family about him could have performed it for him. The fact that the plaintiff did not know of the existence of the policy before her husband's death does not change the case. Prudence and care on the part of the assured would have prompted him to prepare for the payment of the assessment upon the day it became due, and to inform his wife of his contract, and his obliga- tion to perform it at the time therein prescribed."^ For the same reasons insanity is also no excuse for non-payment of premiums on the day agreed.® 1 Howard v. Mut. Ben. L. Ins. Co., 6 Mo. App. 577. » Morey v. New York L. Ins. Co., 2 Woods, 664. ' Bulgar V. Washington L. Ins. Co., 63 Ga. 328. * Carpenter v. Centennial Mutual Life Assn., 68 la. 453; 27 N. W. Eep. 456. « Smith V. Penn. Mut. L. Ins. Co., 11 W. N. C 296; Scully ». Kirk- patrick, 79 Pa. St. (29 P. F. Smith) 324; Klein v. Ins. Co., 104 XT. S. 88; Yoe B. B.C. Howard Masonic M. Ben. Assn., 63 Md. 86; Howell r. Knickerbocker L. Ins. Co., 44 N. Y. 276. • Wheeler v. Conn. Mut. L. Ins. Co., 82 N. Y. 543; 16 Hun, 317f Hawkshaw®. Knights of Honor, 29 Fed. Rep. 770; Thompson o. Ins. Co., 104 U. S. 252. 536 PREMIUM, ASSESSMENTS AND DUES. § 273- § 356. Effect of War on the Contract. — The Su- preme Court of the United States has held,^ that a life in- surance policy, which stipulates for the payment of an annual premium, and that it shall be void for non-payment, makes the premium an annuity, the whole of which is the consideration for the contract ; and the condition is a condition subsequent, the non-performance of which ren- ders the policy void. If a failure to pay was caused by war, a forfeiture follows, nevertheless, if the insurer insists on the condition ; but the insured is entitled to the equita- ble value of the policy arising from the payments actually made. Upon this question, however, there is decided dif- ference of opinion, but the rule laid down above seems to be- supported by the weight of reasoning as well as of author- ity.^ There is excellent authority, however, opposed to the above rule and which holds that war does not dissolve the contract, but merely suspends it.^ § 357. No Absolute liiabillty on the Part of the As- sured to Pay the Premium if Payment is only a Condi- tion, and there is no Promise to Pay. — In a contract of 1 New Tork L. Ins. Co. v. Statham, 93 TJ. S. 24 ; New York L. Ins. Co.. V. Davis, 95 V. S. 425. 2 Abell V. Penn.>Mut. L. Ins. Co., 18 W. Va. 400; Tait v. New York li. Ins. Co., 1 FUp. 288; Bird ». Penn. Mut. L. Ins. Co., 11 Phila. 485; 2 W. N. C. 410 ; Worthington v. Charter Oak L. Ins. Co., 41 Conn. 372 ; Dillard v. Manhattan L. Ins. Co., 44 Ga. 119; Hancock v. N. Y. Life Ins. Co., 13- Am. L. Keg. (n. s.) 103. 3 Mut. Ben. L. Ins. Co. v. Hillyard, 37 N. J. L. 444; Hillyard v. Mut. Ben. L. Ins. Co., 35 N. J. L. 415; Cohen v. New York Mut. L. Ins. Co., 50- N. Y. 610; Martine v. International L. Ass. Soc, 53 N. Y. 339; 62 Barb. 181; 5 Lans. 535; Sands v. N. Y. Life Ins. Co., 50 N. Y. 626; 59 Barb. 666; Robinson v. International L. Ass. Soc, 42 N. Y. 64; 62 Barb. 460; New York L. Ins. Co. v. Clopton, 7 Bush, 179; Manhattan L. Ins. Co. v.. Warwick, 20 Gratt 614; Mut. Ben. L. Ins. Co. v. Atwood, 24 Gratt. 497; N. Y. L. Ins. Co. v. Hendren, Id. 536; Conn. Mut. L. Ins. Co. v. Duer- 8on, 28 Gratt. 630; Clemmitt v. New York L. Ins. Co., 76 Va. 355; Stat- ham V. N. Y. L. Ins. Co., 45 Miss. 581, where a tender was held to havft preserved the rights ot the insured. 537 •§ 348 PEEMIUSI, ASSESSMENTS AND DUES. life insurance there is generally no absolute undertaking of the insured to pay the premiums, or assessments, and con- sequently no personal liability therefor. The payment of the premium, or assessments, is only a condition precedent of the liability of the company: the insured does not promise to pay the premiums and the company only promises to pay if it has received the agreed consideration. Therefore the insured may pay or not as he pleases, he has the perfect right to do either and need give no excuse for his choice. If he does not pay the contract is ended. It follows, therefore, that the premium, or assessment, is only a debt when there is an absolute promise to pay embodied in the contract.^ § 358. Time of Payment of Premium may be Ex- tended. — The company, however, or an authorized agent may extend the time of payment of a premium and such extension will be sustained. It is a question of fact whether an extension has been given.^ But where the policy has been forfeited by a violation of one of its conditions, and not by the non-payment of premiums only, so that the policy is void, a mere promise made thereafter without -consideration, to continue the policy in existence upon the payment of an additional premium, which is thereafter tendered, but not accepted by the company, will not be enforced.' Where the assured has been in the habit of paying his premiums after they became due in accordance with a promise of accommodation the company cannot end 1 New York L. Ins. Co. v. Statham, 93 U. S. 24; Worthington v. Char- ter Oak L. Ins. Co., 41 Conn. 372; Dungan v. Mut. Ben. L. Ins. Co., 46 Md. 492; Manhattan L. Ins. Co. v. Smith, 44 Ohio St. 156; and, indeed, ■all the authorities cited in this chapter. 2 Dean v. .Sltna L. Ins. Co., 62 N. Y. 642, afEg. 2 Hun, 358; Palmer «. Phoenix Mut. L. Ins. Co., 84 N. Y. 63; Fitzpatrick v. Mutual, etc., Assn., 25 La. Ann. 443; McCraw v. Old North State, etc., Ins. Co., 78 N. C. 149; ■Wlnindger v. Globe Mut. L. Ins. Co., 3 Hughes, 257. * Evans v. United States L. Ins. Co., 3 Hun, 587. 538 PREMIUM, ASSESSMENTS AND DUES. § 360 sueh indulgence and insist upon prompt payment without notice.^ § 359. Excuses for Xon-payment. — One holding a policy of life insurance does not forfeit his policy by omit- ting to pay the annual premiums thereon after the company issuing the policy has ceased to do business, transferred all its assets and become insolvent, or after a receiver has been appointed.^ Nor when the insurer is a foreign -company and has ceased to do business in the place where the premium is specified to be payable, and has no known agent there.* A company has no right to turn its policy holders over to another company without their consent, and if it does so the policy holders are not bound to continue "to pay their premiums.* But where a party failed to pay "the premium upon his policy which had become due six months prior to the failure of the company and the appoint- ment of a receiver, it was held that the policy was for- feited.* § 360. Where the Company must Give Notice of Matur- ity of Premium. — Unless so stipulated in the policy the insurer is not generally bound to give notice of the maturity ■of a premium where the amount of such premium is fixed by the contract. The fact that before the policy was issued a promise of notice was made is immaterial, such promise not being embodied in the policy,* nor will it excuse thait 1 DlUeber v. Knickerbocker L. Ins. Co., 76 N. Y. 667. 2 Attorney-General v. Guardian Mut. L. Ins. Co., 82 N. Y. 336; Attor- ney-General t). Continental L. Ins. Co., 33 Hun, 138 ; Jones v. Life Assn. of America (Ky. Ct. Appeals), 7 Ky. L. Rep. 1; 2 S. W. Rep. 447. ' Dorionc. Positive Government, etc., Co., 23 Low. Can. Jui. 261. But ■see Quinn v. Manhattan L. Ins. Co., 28iLa. Ann. 135. < People V. Empire Mut. Ins. Co., 92 N. Y. 105; People v. Security L* .etc., Co., 78 N. Y. 114; 34 Am. Rep. 622; Shaw v. Republic L. Ina. Co., «9 N. Y. 286. » Attorney-General v. Continental L. Ins. Co., 64 How. Pr. 619. 8 Insurance Co. ■». Mowry, 96 U. S. 544. 539 § 3fil PKEMIUM, ASSESSMENTS AND DUES. the company had a usage of giving notice,^ and where no- tice is required by law, a substantial compliance is suffi- cient.^ The burden is on the company to show such notice.* But if it was the general practice of the company to notify the assured of the amount of the premium and the share of the profits to which he, as a member of a mutual company, was entitled to receive under the terms of the contract, and the company had knowledge of the residence of the assured, and failed to notify the assured and by reason thereof a. premium is not paid when due, the company cannot set up- such failure to pay as a defense to the policy.* And where the company under such circumstances repudiates the con- tract and clearly indicates that a tender of the premium after the death of the insured, if made, would not be accepted,, a failure to make such tender is excused.* It is competent for the parties to modify the contract in regard to the pay- ment of premiums or notice and the terms of such modifi- cation must be complied with by the insurer .° Where the husband procures a policy of insurance on his life payable- to his wife or children he will be taken to be their ^agent for the purpose of receiving notice of the premiums.^ § 361. Receipt of Premiums after They are Duer Usage. — Where the insurer has, by a course o| dealings < Mandego v. Centennial Mut. Assn., 64 la. 134; Thompson e. Ins. Co.^ 104 V. S. 252; Smith v. National L. Ins. Co., 103 Pa. St. 177. 2 Phelan ». Northwestern Mut. L. Ins. Co., 42 Hun, 419. * Baxter v. Brooklyn L. Ins. Co., 44 Hun, 184. < Meyer v. Knickerbocker L. Ins. Co., 73 N. Y. 516; Insurance Co. c Eggleston, 96 U. S. 572 ; Union Cent. L. Ins. Co. v. Pottker, 33 Ohio St. 459; Mayer r. Mut. L. Ins. Co., 38 la. 304. 8 Manhattan L. Ins. Co. v. Smith, 44 Ohio St. 156 ; Attorney-General V. Continental L. Ins. Co., 33 Hun, 138; Phoenix Ins. Co. v. Doster, lOft TJ. S. 30. 6 Phoenix Mut. L. Ins. Co. v. Hinesley, 75 Ind. 1; Dilleber v. Knicker- bocker L. Ins. Co., 76 N. Y. 567. ' Whitehead v. New York L. Ins. Co., 102 N. Y. 143, reversing 33 Hun, 425; Manhattan L. Ins. Co. v. Smith, 44 Ohio St. 156. 540 PREMIUM, ASSESSMENTS AND DUES. § 362 «stablished a habit of receiving premiumd after they are . Fletcher, 117 IT. S. 519. 5 Post, §§ 432, 433. « McNeiUy v. Continental L. Ins. Co., 66 N. Y. 23; Seamans v. N. W. Mut. L. Ins. Co., 1 McC. 508; 3 Fed. Rep. 325. ' Brlggs V. National L. Ins. Co., 11 Fed. Kep. 458. ' 547 § 367 PEEMIUM, ASSESSMENTS AND DUES. the new agent.^ And where, after diligent inquiry, the insured could not find the new agent, and sixty days after the premium was due tendered it to the former agent, it was held that the delay was not unreasonable and that there was no forfeiture.* Where the company discontinued its agency at the place of the residence of the assured, and thereafter notified him from time to time where to pay, but the insured did not received the notice of one premium and did not find out where the receipt was until nearly sixty days later, when he made a tender, which the agent refused to receive unless a certificate of health was furnished, which was not done, and the assured died a few days later, it was held that there was no forfeiture.* In this case the court says : " The business of life insurance is in the hands of a few large companies, who are generally located in our large commercial cities. Take a company, located, like the plaintiff in error, in New York, for example. It solicits business in every State of the Union, where it is repre- sented by its agents, who issue policies and receive pre- miums. Could such a company get one risk where it now gets ten, if it was expected or understood that it was not to have local agents accessible to the parties insured, to whom premiums could be paid instead of having to pay them at the home office in New York? The universal prac- tice is otherwise. Local agents are employed. The bus- iness could not be conducted on its present basis without them. Now, suppose the local agent is removed, or ceases to act, without the knowledge of the policy holders, and their premiums become due, and they go the local office to pay them, and find no agent to receive them; are these policies to be forfeited? Would the plaintiff in error, or any other company in good standing, have the courage to 1 Seamans v. "S. W. Mnt. L. Ins. Co., supra. * Ibid. • Insarance Co. r. Eggleston, 96 TJ. S. 572. 548 PBEMIUM, ASSESSMEKTS AND DUES. § 367 say SO? We think not. And why not? Simply because the policy holders would have the right to rely on the gen- eral understanding produced by the previous course of business pursued by the company itself, that payment could be made to a local agent, and that the company would have such an agent at hand, or reasonably accessible. We do not say that this course of business would alter the written contract, or would amount to a new contract relieving the parties from their obligation to pay the premium to the company, if they can find no agent to pay to. That obli- gation remains. But we are dealing with the question of forfeiture for not paying at the very day; and, in refer- ence to that question, it is a good argument in the mouths of the insured to say : ' Your course of business led us to believe that we might pay our premiums at home, and estops you from exacting the penalty of forfeiture without giving us reasonable notice to pay elsewhere.' The course of business would not prevent the company, if it saw fit, from discontinuing all its agencies, and requiring the pay- ment of premiums at its counter in New York. But, with- out giving reasonable notice of such a change, it could not insist upon a forfeiture of the policies for want of prompt paymentcausedby their failure to give such notice. • * • In the present case, it seems to us that the chai'ge of the judge was in substantial conformity to the principles we have laid down. The insured, residing in the State of Mississippi, had always dealt with agents of the company located either in his own State or within some accessible distance. He had originally taken his policy from, and had paid his first premium to, such an agent; and the com- pany had always, until the last premium became due, given him notice what agent to pay to. This was necessary, be- cause there was no permanent agent in his vicinity. The judge rightly held, that, under these circumstances, he had reasonable cause to rely on having such notice. The com- 549 § 369 PKEWIUM, ASSESSMENTS AND DUES. pany itself did not expect him to pay at the home office ; it had sent a receipt to an agent located within thirty miles of his residence ; but he had no knowledge of this fact ; — at least such was the finding of the jury from the evidence." § 368. Wbere the Day of Payment Falls on Snnday. — If the day appointed for the payment of premium fall on Sunday the payment is in time if made on Monday, even though a loss occur on Sunday afternoon, and the policy provide that it shall be void if the premium be not paid before noon of the day fixed.' This rule applies to notes given for premiums.^ But the Court of Appeals of Ken- tucky has held that because the day on which payment is to be made is Thanksgiving the insured is not excused from paying, because the statute of that State which provides that Thanksgiving day shall be treated as Snnday in regard to the presentment, acceptance and protesting of notes and bills does not apply to other business transactions or con- tracts.' I § 369. Premium Need not Always be Paid in Money: Wliat Amounts to Payment. — Unless otherwise provided for by the contract the payment of a premium may be in any mode, services, checks, or even depreciated funds, that may be accepted without objection by the insurers or their agents. Payment by check which was dishonored has been held good,* but not if the policy provides otherwise.* A 1 Hammond v. American Mnt. Life Ins. Co., 10 Gray, 306;' Howland v. Continental Life Ins. Co., 121 Mass. 499; Taylor tj. Germanla Ins. Co., 2 DUl. 282; Campbell v. International Life Ass. Soc, i Bosw. 298. In this latter case is a learned review of all cases bearing upon the lawfulness, of Sunday acts. 2 Leigh V. Knickerbocker Lite Ins. Co., 26 La. Ann. 436. ' National Mut. Ben. Assn. v. MUler, 2 S. W. Bep. 900; 8 Ky. L. Rep. 731. * Mtaa, Life Ins. Co. v. Green, 38 Up. Can. Q. B. 459. » Neill V. TTnion Mut. Life Ins. Co., 45 Up. Can. Q. B. 693; affirmed 7 Ont. App. 171. 550 PREMIDM, ASSESSMENTS AND DUES. § 369 general agent may accept a note,^ and even though it be unpaid the policy is not forfeited,^ and so with an order upon a third party ; if the company wishes to insist upon a non-forfeiture in consequence of its non-payment, it must give timely notice.* If a receipt stipulate that if the draft, accepted in payment of the premium, be not paid the re- ceipt s^all be of no effect, the policy jwill lapse if the draft is unpaid/ And if there are mutual accounts between the parties, charging the premium to the insured is payment.* And where the agent, who had dealings with the firm of the assured, told him that he had taken care of the pre- mium, this was held to be payment.® Where the insured, in pursuance of instructions from the company, delivers the amount of the premium to an express company, the premium is paid from the time of such delivery.^ Part payment of a premium will not keep a policy in force pro tanto ; * nor is a cash payment and notes for the deferred quarterly premiums payment if the notes be not paid ; ' nor writing a letter with the money enclosed, if it be not delivered to an express company, when the insured was in- structed to pay to the express company; ^^ nor a payment 1 New York Life Ins. Co. o. McGrowan, 18 Kan. 300; Mississippi Val- ley Life Ins. Co. v. Neyland, 9 Bosh, 430. > SontlieTn Life Ins. Co. v. Booker, 9 Heisk. 606. ^ National Benefit Assn. v. Jackson, 114 111. 533; Lyon v. Travelers' Ins. Co., 65 Alich. 141. * Life Insniance Co. v. Pendleton, 112 TJ. S. 696; 115 TJ. S. 339. ' Continental Life Ins. Co. v. Ashcraft, 18 W. N. C. 97; Marsh c. Northwestern Nat. Ins. Co., 3 Biss. 351; Bntler v. Am. Popular Life Ins. Co., 10 Jones &, S. 342. Bat see Wright o. Equitable Life Ins. Co., 9 Jones & S. 1. « Chickeringo. Globe Mnt. Life Ins. Co., 116 Mass. 321. ' Currier v. Ins. Co., 53 N. H. 538 ; Whitley v. Piedmont & Arlington Ins. Co., 71 N. C. 480. * Hudson o. Knickerbocker Life Ins. Co., 28 N. J. Eq. 167; WUlcuts v. Northwestern Mat. Life Ins. Co., 81 Ind. 300. * Werner o. Metropolitan Life Ins. Co., 11 Daly, 176; Howard «. Con- tinental Life Ins. Co., 48 Cal. 229. ^ Donald v. Life Ins. Co , i S. C. 321. 551 § 370 PKEMIXJM, ASSESSMENTS AND DUES. in other than money to an agent under circumstances amounting to fraud upon the insurer.^ But ordinarily, the payment is good if the agent receive the equivalent offered, be it even depreciated funds ,^ or note.^ Unless otherwise provided payments of premiums are to be made at the domicile of the company.* § 370. Payment of Premiam after Death of Insured r Days of Grace. — It has been held that, if the insured ha» been led to believe that prompt payment of premiums will not be insisted upon, payment can be made of a premium after it is due and even though the insured may be dead.*- Where by the terms of the policy, the premium was due at a certain time or within thirty days thereafter, payment can be made during the thirty days although the insured is dead.* A policy will not be forfeited for mere non-pay- ment of assessments, if paid after the death of the insured in pursuance of a request made by him when alive, which assessments, are retained by the insurer until after suit brought.' If the overdue premium be paid after the death of the insured, under circumstances which make it a fraud on the company, it will not be liable; as where, after the insured had on demand refused to pay the premium and a few days afterwards died, a friend paid the amount to the company, which, not knowing of the death, accepted it.* 1 Hoflman v. John Hancock Life Ins. Co., 92 TJ. S. 161. 2 Sands v. New Tork Life Ins. Co., 50 N. Y. 626 ; New Tork Llle Ins. Co. V. Clopton, 7 Bush, 179. s Mut. Ben. Life Ins. Co. v. French, 30 Ohio St. 240; Pitt ». Berkshire Life Ins. Co., 100 Mass. 500; Mowry v. Home Ins. Co., 9 R. I. 346; Mof- fatt V. Reliance Mut. Life Ins. Soc, 45 Up. Can. Q. B. 561. * Insurance Co. v. Davis, 95 U. S. 425. « Mayer v. Mut. L. Ins. Co., 38 la. 304; Froelich v. Atlas L. Ins. Co., 47 Mo. 406. In this case the money was received without objection by the company. • Rogers v. Capitol L. Ins. Co., 1 W. N. C. 589. ' Erdmann v. Mut. Ins. Co., etc., 44 Wis. 376. » MUler V. Union Cent. L. Ins. Co., 110 111. 102. 552 PKEMIDM, ASSESSMENTS AND DUES. § 371 But it has been said that, where days of grace are given,, after the premium is due, for its payment, if the insured wishes to take advantage of the delay he must do so at his^ own risk. If he dies, therefore, within the period of grace with the premium unpaid the policy is gone. This is the reason that the right to make the payment is personal in such cases and cannot be delegated and closes with the death of the insured. In practice, however it is seldom that the delay granted is considered a period of grace and where it has been ao held some special wording of the policy justified it. A distinction is made between mere days of grace and an extension of the time of payment, or a tim& allowed by the contract for the payment, as where the pre- mium was to be paid at a certain time or thirty days there- after; in the latter case payment can be made during any part of the period although a loss has meantime happened.*- § 371. When Xote is Taken for Preminm. — If an in- surance company takes a note for the premium when it falls due, and gives therefor renewal receipts, the transac- tion evidences a loan of money, and, unless otherwise stip- ulated in the policy, the policy continues in force, though the note be not paid, and the company cannot afterwards insist on its forfeiture. This is especially the case if the note of some other person than the assured be taken.* 1 Howell V, Knickerbocker !> Ins. Co., 4t N. T. 277; Pritchard r. Mer- chants', etc.. See, 3 C. B. (n. s.) 622; Simpson v. Accidental Death Ins. Co., 2 C. B. (s. 8.) 257; Bobert v. New England, etc., Ins. Co., 1 Disney,. 355 ; McDonnell v. Carr, 1 Hayes & Jones Irish E. 256. And see Worden v. Gnardian, etc., Ins. Co., 7 Jones & Sp. 317, where the distinction mentioned in the text is made. In "Want v. Blnnt, 12 East, 183, the policy provided that the payments should be made at certain times " dnring the life " of the insured. Construing this it was held that the insured must be living at the time of the payment. * Michigan Mut. L. Ins. Co. v. Bowes, 42 Mich. 19; Tabor v. Mich. Mut. L. Ins. Co., 44 Mich. 324; Franklin L. Ins. Co. v. Wallace, 93 Ind. 7- "VorthwestemM. L. Ins. Co. v. Little, 56 Ind. 504; Mut. Ben. Insnr- 553 ^ 371 PEEMIUM, ASSESSMENTS AND DUES. Where, however, the policy provides that if a note or check received for any premium be not paid the policy shall be forfeited, the insurance falls if the paper be not paid, and the company is not bound to give notice of the maturity of such paper.i Nor, unless so agreed, is the company bound to return the note.^ An interesting case was decided in the United States Circuit Court for Vermont, the facts being as follows: ' A mutual life insurance company insured, by an «ndowment policy, the life of a husband for the sole bene- fit of his wife, in an amount payable to her on a day named. For four years the company accepted the notes of the hus- band as payment of one-half of the annual premiums, the notes being given on the representation by the company that they would be paid by dividends and pledging the policy and all payments that might become due thereon, to the company for the payment of such notes. In a suit by the husband and wife, in right of the wife, against the company to recover the amount insured, the plaintiffs claimed that the dividends declared, if credited on the notes, would pay them in full; the defendant, however, claimed, that the amount due on the policy was the sum insured, less the amount due on the notes. The court held that the notes were not binding on the wife and were not to be de- ducted from the policy, she never having done anything to qualify her right to it. ance Co. v. French, 30 Ohio St. 240; Shaw v. Republic L. Ins. Co., 69 N. T. 286; Tnttc. Covenant L. Ins. Co., 19 Mo. App. 677; TimayenlB r. Union Mnt. L. Ins. Co., 21 Fed. Bep. 223; Trager v. Louisiana Equitable L. Ins. Co., 31 La. Ann. 235. But see St. Louis Mut. L. Ins. Co. u. Grigs- by, 10 Bush, 310. 1 Thompson «. Insurance Co., 104 U. S. 252, affirming 2 Woods, 547; Neill V. Union Mut. L. Ins. Co., 45 Upp. Can. Q. B. 593; Gorton ». Dodge •Co., etc. Ins. Co., 39 Wis. 121. ' Deppe V. Southern Mut. L. Ins. Co., 8 Ky. L. Rep. 57; Roehner v. Knickerbocker L. Ins. Co., 63 N. Y. 160; How v. Mutual L. Ins. Co., 80 N. X. 32. » Brooks V. Phoanix Mut. L. Ins. Co., 16 Blatohf. 182. 554 PREMIUM, ASSESSMENTS AND DUES. § 372 § 372. The" Same Subject: Premium Notes Proper. — Tn many companies parb of the premium is regularly paid by what is called premium notes. The policy itself gener- ally provides as to these, and if it does the agreement of the parties prevails. A premium note is not delivered while held by a third party to whom it was given to carry to the -agent.^ If the policy provides that if a premium note be not paid at maturity the policy shall be void, non-payment ■of such note forfeits the policy.^ But such agreement must be clearly expr^sed or it will not be enforced.' It is unnecessary to make demand for the payment of a premium note, unless so provided in the contract.* If the company leceives money on an overdue premium note from an agent without inquiry the forfeiture is saved.' In contracts of life insurance the time for the payment of interest on pre- mium notes is of the very essence of the contract; and if, Tjy the terms of the policy, it is to become void upon a fail- Tire to pay such interest at the time specified, non-payment ■of interest works a forfeiture against which equity will not relieve.' Such a provision is not usurious nor unconscion- able.' A condition, however, that non-payment of interest 1 Brown v. Ins. Co., 59 N. H. 298. s Baker o. Union Mut. L. Ins. Co., 43 N. Y. 283; Kerns v. New Jersey M. L. Ins. Co., 86 Pa. St 171; How ■o. Union Mut. L. Ins. Co., 80 N. T. ■S2 ; Sanderson v. New England L. Ins. Co., 1 Disn. 355 ; McAllister v. New England M. L. Ins. Co., 101 Mass. 558; Bane v. Travelers' Ins. Co., 7 Ky. L. Bep. 750. ' New England Mut. L. Ins. Co. v. Hasbrook, 32 Ind. 447; Cowles v. Insurance Co., 63 N. H. 300; Kansas Prot. Union v. Whitt (Kan.), 14 Pac. Eep. 276. * Koehner v. Knickerbocker L. Ins. Co., 63 N. T. 160; 4 Daly, 512; Deppe V. Southern Mut. L. Ins. Co., 8 Ky. L. Eep. 57. » Hodsdon v. Guardian L. Ins. Co., 97 Mass. 144. • Knickerbocker L. Ins. Co. ■». Dietz, 52 Md. 16; Patch ». Phoenix M. X. Ins. Co., 44 Vt. 481; Knickerbocker L. Ins. Co. v. Harlan, 56 Miss. -612; Anderson ». St. Louis Mut. L. Ins. Co., 1 Flip. 559. ' Attorney-General v. North American L. Ins. Co., 82 N. Y. 172; In- surance Co. V. Robinson, 40 Ohfo St. 270; Russum v. St. L. Mut. L. Ins. ■Co 1 Mo. App. 228; Nettleton v. St. Louis L. Ins. Co., 7 Biss. 293, where 555 § 373 PREMIUM, ASSKSSME>fTS AND DUES. on a premium note shall forfeit the policy cannot be in- serted in a paid-up policy given in exchange for another, if the terms of the original policy do not warrant it.^ And non-payment of interest will not be cause of forfeiture un- less so stipulated.^ Where dividends are due the assured: they should be applied first to the payment of interest on the premium note and then to the principal,^ unless there has been a well defined custom to the contrary.* Where- the premium notes were considered as loans by the com- pany it was held by the Supreme Court of Vermont, in con- struing the policy, that non-payment of interest on such notes did not cause a forfeiture although it was apparently so provided in the policy.* Where the policy provided for- forfeiture if interest on the premium notes was not paid, and by indorsement the policy was made paid-up for a cer-^ tain amount, it was held that the proviso continued and the policy was made void by the non-payment of interest on the premium notes.* And so where a new policy was taken containing the provision of forfeiture for non-payment of interest on the premium note.' § 373. Non-Forieitable Policies. — Many policies are called " non-forf citable " although, by their terms, so- it Is suggested that there may be oases where equity would relieve^ against forfeiture for non-payment of interest. Smith o. St. L. Mut. L. Ins. Co., 2 Tenn. Ch. 727. Opposed to these cases are St. L. Mut. L. Ins. Co. V. Grigsby, 10 Bush, 310; Northwestern Mut. L. Ins. Co. v. Fort, 82- Ky. 269; Cowles v. Continental L. Ins. Co., 63 N. H. 300; 1 N. Eng. Bep. 247. 1 Cole V. Knickerbocker L. Ins. Co., 63 How. Pr. 442. 2 Gardner v. Union Central L. Ins. Co., 5 Fed. Rep. 430. 8 Northwestern Mut. L. Ins. Co. v. Fort, 82 Ky. 269; Smith v. St, Louis Mut. L. Ins. Co., 2 Tenn. Ch. 727. * Anderson ®. St. Louis Mut. L. Ins. Co., IFlip. 559. « Bruce v. Continental L. Ins. Co., 58 Vt. 253; 1 N. Eng. Rep. 636; Insurance Co. v. Bonner, 36 Ohio St. 51. 6 Holman v. Continental L. Ins. Co., 54 Conn. 195; 2 N. Eng.. Rep. «33, all the previous cases on the subject being here fully reviewed. ' People V. Knickerbocker L. Ins. Co., 103 N. Y. 480. 556 PEEMIUM, ASSESSMENTS AND DDES. § 373 many conditions and limitations are imposed, that the word means little except that they are either subject to the Mas- sachusetts law, of which we shall soon speak, or that, after A certain number of premiums are paid, they may be ex- changed for paid-up policies or become paid up by their own terms for a certain percentage of the original amount. The questions arising out of these policies are chiefly those ■of construction, and the adjudications upon these questions are individual, rather than upon general principles. Where a new policy, issued on receipt and surrender of the old one, conforms to the terms of the old in respect to forfeit- ure for non-payment of interest on a premium note, this provision will be upheld.^ And no notice of the time when such interest is due will be given. ^ Where the policy pro- vides that a certain number of " complete annual pre- miums ' ' must be paid to entitle the policy to be exchanged, payment of the premium notes given for a portion of the premium has been held unnecessary, to bring the payment of the premium within the term.* Under the provisions of a policy of this kind, where it was provided that upon default in the payment of any annual premium it could be exchanged for a paid-up policy, for as many tenths as there had been annual premiums paid, it was held that the premium notes could not be deducted from the amount of the new policy.* Whether the old policy must be surren- ■dered or not, to obtain the benefit of the provision in a non- » People V. Knickerbocker L. Ins. Co., 103 N. T. 480; 9 N. East. Bep. 25; i Cent. Eep. 783; Holman v. Continental L. Ins. Co., 54 Conn. 195; Moser v. Phcenis M. L. Ins. Co., 2 Mo. App. 408; ETfald v. Northwestern Mut. L. Ins. Co., 60 Wis. 431 ; Bussum v. St. L. Mut. L. Ins. Co., 1 Mo. App. 228. 2 Heim v. Metropolitan L. Ins. Co., 7 Daly, 536. » Ohde V. Northwestern Mut. h. Ins. Co., 40 la. 357. * Dutcher v. Brooklyn L. Ins. Co., U. S. Clr. Ct. E. D. Mo., 3 DUl. 87; 4 Ins. I/. J. 812; affirmed, Ins. Co. v. Dutcher, 95 TJ. S. 269. But the un- paid premium notes would be a lien on the new policy. See also Ohde «. Northwestern L. Ins. Co., 40 la. 357. 557 § 373 PREMIUM, ASSESSMENTS AND DUES. forfeiting policy, which provides that, upon default in the payment of any premium, it may be surrendered, and a. new one for a specified proportional part issued, within the prescribed time mentioned in the old, depends upon the wording of the contract. In one case,^ it was held that such a surrender within twelve months was unnecessary, but there the language of the policy was not clear. In a later case in the same State ^ it was held that a surrender within the limited twelve months was unnecessary, if the insured died during such period.^ Where, by a separate instrument, the company agreed, after the payment of three annual premiums, to issue a paid-up policy for a pro- portionate amount on surrender of the policy, " on or before it shall expire by the non-payment of the fourth or any subsequent premium," it was held that the word " on" should be construed to mean the instant of the expiration of the policy and that time was of the essence of the con- tract and the assured was not entitled to a paid-up policy on the surrender of the original policy after it had expired. *^ And generally the right to demand a paid-up policy must be exercised within the time prescribed or it will be lost.* The conditions of the old policy apply to the new or the 1 Chase v. Phoenix Mut. L. Ins. Co., 67 Me. 85. 2 Dorr V. Phoenix M. L. Ins. Co., 67 Me. 438. s Wheeler v. Conn. Mut. L. Ins. Co., 82 N. Y. 543, reversing 16 Hun, 317. ■* Sheerer®. Manhattan L. Ins. Co., 20 Fed. Rep. 886;- 16 Fed. Rep. 720; Smith v. National L. Ins. Co., 103 Pa. St. 177; People v. Widows, etc., Ins. Co., 15 Hun, 8; Phoenix Mut. L. Ins. Co. v. Baker, 85 111. 410; Koeliler». Phoenix Mut. L. Ins. Co., 4 Ky. L. Rep. 903. 6 Hudson V. Knickerbocker L. Ins. Co., 28 N. ,T. Eq. 167; Attorney- General V. Continental L. Ins. Co., 93 N. T. 70; Universal L. Ins. Co. v. Whitehead, 58 Miss. 226; Hanthorne v. Brooklyn L. Ins. Co., 5 Mo. App. 73; Bussing v. Union Mut. L. Ins. Co., 34 Ohio St. 222. But see Southern Mut. L. Ins. Co. v. Montague, 2 S. W. Rep. 443; 8 Ky. L. Rep. 679; Germania L. Ins. Co. v. Saur, 7 Ky. L. Rep. 297; CofCey u. Uni- versal L.Ins. Co., 10 Biss. 354; 7 Fed. Rep. 301; Montgomery v. Phoenix' Mut. L. Ins. Co., 14 Bush, 51. 558 PREMIUM, ASSESSMENTS AND DUES. § 374 commuted portion.^ If there are no words of restriction, a-i to time of application therefor, then the assured is entitled to a paid-up policy at any time he may ask for it.^ A con- tract for a paid-up policy may be specially enforced.-'' But unless the company has bound itself to issue a paid-up policy it is under no obligation to do so.* § 374. The Massacbiisetts Non-Forfeiture Liaw. — A question has often arisen under what is known as the Mas- sachusetts non-forfeitable law as to what is the indebted- ness which is to be deducted from the net reserve of the policy. This law,^ which has been adopted in many of the 1 Merritt v. Cotton States Ins.- Co., 55 Ga. 103. * Christy t). Homeopathic M. L.- Ins. Co., 93 N. T. 3i5; Lovell o. St. L. Mut. L. Ins. Co., Ill U. S. 264. ' Standley B. Northwestern Mat. L. Ins. Co., 95 Ind. 254; Farley ». Union Mut. L. Ins. Co., 41 Hun, 303; Missouri Valley L. Ins. Co. v. Kelso, 16 Kan. 481. ' Packard v. Conn. Mat. L. Ins. Co., 9 Mo. App. 469. For other dis- tinctions in regard to paid-up policies, see Johnson v. Southern ilut. L. Ins. Co., 79 Ky. 403; Hnghes v. Piedmont & Arlington L. Ins. Co., 55 Ga. Ill; Mnt. L. Ins. Co. v. Bratt, 55 Md. 200; Symonds v. Northwestern I,. Ins. Co., 23 Minn. 491; Fithian v. Same, 4 Mo. App. 386; Belt v. Brooklyn L. Ins. Co., 12 Mo. App. 100; White v. Penn. Mut. L. Ins. Co., 6 Mo. App. 587; Mound City, etc., Co. v. Twining, 19 Kan. 349; 12 Id. 475; Northwestern M. L. Ins. Co. v. Ross, 63 Ga. 199; Hull v. Same, 39 Wis. 397; Northwestern Mnt. I,. Ins. Co. v. Little, 56 Ind. 504; IJoUy V. Metropolitan L. Ins. Co., 105 N. Y. 437; 11 N. East. Hep. 507; 7 Cent. Kep. 263; Ins. Co. v. Kobinson, 40 Ohio St. 270; Knapp v. Homeopathic Mat. L. Ins. Co., 117 U. S. 411. In most of the cases referred to the last two sections of the text other points are discussed besides those in support of which they are cited. * St. 1861, Ch. 186. This law was changed in 1880; Laws 1880, Ch. 232, § 6. The original law of 1861 is re-enacted in Stat. 1882, § 159, Ch. 119, as follows : § 159. No policy of life insurance issued between the ninth day day of May in the year 1861 and the first day of January in the year 1881 by a domestic company shall be forfeited or become void by the non- payment of premium thereon, any further than regards the right of the party insured therein to have it continued in force beyond a certaiu pe- riod, to be determined as follows, to-wit: The net value of the policy, when the premium becomes due and is not paid, shall be ascertained, 55y •§ 374 PREMIUM, ASSESSMENTS AND DDES. States, provides that no policy of life insurance shall be ■cancelled or become void for non-payment of premium any further than the right of the assured to have it continued in force, by the application of the net reserve on the policy, less any indebtedness to the company or notes given foi premiums plus one-fifth of what is left after such deduc- tion, to the purchase, as a single premium, of paid-up insur- -ance for the term which it will cover. If the death of the insured occurs during this term the amount of the policy is to be paid as if no default had been made, less, however, i;he amount of the premiums forborne with interest. Un- der this law a policy, terminable by failure " to pay when due any notes or other obligations given for premium," is ^ietermined by failure to pay an installment due on a premium note, and such note is to be deducted from the net value of the policy as an indebtedness ^ and so with i;he unpaid half of an annual premium, payment of which was deferred six months by the terms ot a memorandum.^ But if the unpaid portion of the an- according to the "combined experience" or " actuaries " rate of mortal- ity, witli interest at four per cent per annum. Aiter deducting from such net value any indebtedness to tlie company, or notes held by the com- pany against the insured, which notes, if given for premium, shall then Tie cancelled, four-flfths of what remains shall be considered as a net -Single premium of temporary Insurance, and the term for which it will insure shall be determined according to the age of the party at the time of the lapse of premium and the assumptions of mortality and interest aforesaid. § 160. If the death of such party occurs within the term of temporary insurance covered by the value of the policy as determined in the preced- ing section, and if no condition of the insurance other than the payment ^)f premium is violated by the insured, the company stiall pay the amount of the policy the same as if there had been no lapse of preminm, anything in the policy to the contrary notwithstanding; provided, that notice of the claim and proof of the death shall be submitted to the company within ninety days after the decease, and that the company may deduct from the amonnt insured in the policy the amount at six per cent, per .annum of thepreminms that had been forborne at the time of the death. 1 Ktt o. Berkshire L. Ins. Co., 100 Mass. 500. 2 Bigelow V. State Slut. L. Ass. Assn., 123 Mass. 113 560 PREMIUM, ASSESSMENTS AND DUES. § 376 •nuaJ premium is not witnessed by a note or other mem- orandum it is not an indebtedness to be deducted from the net value of the policy as provided in the statute.^ The Supreme Court of Louisiana, however, in a case against the same company, came to a conclusion just the reverse.* So far as the application of the Massachusetts law to endow- ment policies is concerned, the Supreme Court of that State has held * that the expiration of the time specified is equiva- lent to the death of the party, and if the insured has not ^aid the last annual premium, but has survived the term, Ihe policy is payable less the amount of the last premium with interest. The point, made by the company, that the policy was only saved in case of the death of the insured within the life of the policy, under the law, after defaultin the payment of a premium, was not approved. § 375. Stranger may become Iiiable for Premium. — A stranger may become liable for the payment of premiums •on a life insurance policy, as where a society, other than the insuring company, in consideration of weekly dues, promises certain benefits in sickness and to pay for life insurance.* An assignee who holds a policy as security for a debt is not bound to pay the annual premiums thereon,' unless, of oourse, he expressly agrees to pay them. § 376. Wlien Company Wrongfully Declares a Forfeit- ure of the Policy. — If a company wrongfully declares the policy forfeited and refuses to accept the premium when duly tendered, and to give the insured the customary renewal receipt, evidencing the continued life of the policy, the assured has his choice of three courses : He may tender 1 Goodwin o. Massachusetts Mnt. L. Ins. Co., 73 N. T. 480. * VanCreelen «. Insurance Co., 36 La. Ann. 226. ■ Carter o. John Hancock Mat. I<. Ins. Co., 127 Mass. 153. * Tentonla L. Ins. Co. v. Anderson, 77 111. 334. See also Barker v. North British Ins. Co., 9 Scot. Sess. Cas. 869. ' Van Daersen o. Scaolan, 7 Cin. L. Bnl. 183. 36 561 § 377 FBBMIUM, ASSESSMENTS AND DDES. the premium and wait until the policy becomes payable by its terms and then try the question of forfeiture ; ^ or he may sue in equity to have the policy continued in force ; * or he may elect to consider the policy at an end and bring^ an action to recover the just value of the policy,' in which case the measure of damages is the amout of the premiums paid with interest on each from the time it was made.* There is no implied promise in law to receive the premiums upon which an action can be based.* § 377. Assessments in Benefit Societies Mast be Made in Exact Accordance with Their Liaws : Strict Constrac- tion. — In benefit societies the losses are paid from the pro- ceeds of assessments, levied, as required, upon the members by a central or superior authority. The manner of calling these assessments is supposed to be set oat in the constitu- tion and by-laws, which also generally provide that if the member does not pay his assessments at the time prescribed, he forfeits all his rights as such member, or is suspended from those rights until such time as he shall be reinstated * Day p. Conn. Gteneral L. Ins. Co., 45 Conn. 480. * Meyer o. Knickerbocker L. Ins. Co., 73 N. T. 516; Ins. Co. v. Tnl- Udge, 39 Ohio St. 240; Hayner v. American Popular L. Ins. Co., 69 Jf. Y. 435; Cohen v. New York Mut. L. Ins. Co., 50 S. Y. 610. 8 McKee v. PhoenixMnt. L. Ins. Co., 28 Mo. 383; Cnion Cent. L. Ins. Co. V. Pottker, 33 Ohio St. 459; Helme v. Philadelphia L. Ins. Co., 61 Pa. St. 107; Fischer v. Hope Mut. L. Ins. Co., 69 N. Y. 161. * Ala. Gold L. Ins. Co. v. Garmany, 74 Ga. 51; 'Whitehead v. New York L. Ins. Co., 102 N. Y. 143. ' Day V. Conn. General L. Ins. Co., 45 Conn. 480. In the preceding sections of this chapter we have necessarily referrred to many cases where, in consequence of what it has, or has not, done, the company has waived certain rights which it otherwise would have had in regard to the policy, or has become estopped from assertang them. While it would be sequential with what has preceded to consider specifically at this place the matters of waiver and estoppel, so far as premiums are con- oeraed, it seems preferable to delay such consideration for the present so as to treat of waiver and estoppel in life insurance matters under the one title, see post, § 431 et seq. 562 PREMIUM, ASSESSMENTS AND DDES. § 377 in accordance with the laws of the society. These provis- ions, being in the nature of penalties or forfeitures, are strictly construed as against the company, for, as says the Supreme Court of Michigan:* "It is well settled that no forfeiture can be established, except for a violation of the precise conditions laid down." The member of a benefit society is as such subject to liabilities and entitled to priv- ileges. His corporate rights may be subject to the control of the corporation, but his rights as a party insured rest on the contract, which is found in the constitution, rules and regulations of the order. The directors, or managers, or officers, of such society, or order, have no right to make an assessment on a different basis than that prescribed in its laws.^ And the members of such society and their benefi- ciaries have the right to rely upon the observance by the company of the requirements of its constitution and by- laws.* The rules, in regard to assessments, were well stated by the Kentucky Court of Appeals in Mut. Aid So- ciety V. Helburn,* when it said: "Thus we see, that, in making assessments by the appellant upon its members, it does not act in a judicial, but in a ministerial, capacity. Therefore, no presumption can arise in favor of the regu- larity or legality of its assessments. That the appellant's board of directors, or an executive committee appointed by them, are the only persons authorized by appellant's charter to make assessments against its surviving members to pay the benefits due the representatives of its deceased mem- bers; that a deceased member of the society should have 1 Bates V. Detroit Mut. Ben. Assn., 51 Mich. 587. s Underwood v. Iowa Legion of Honor, 66 la. 134; Bates v. Detroit Mnt. Ben. Assn., 51 Miclt. 587 ; Passenger Conductors' Assn. v. Bim- baum (Pa.), 10 Cent. Kep. 63; 11 Atl. Rep. 378. > Covenant Mut. Ben. Assn. o. Spies, 114 111. 463; Protection L. Ins.. Co. V. Foote, 79 lU. 362; Woodfln o. AshvUle, 6 Jones L. (N. C), 558, and indeed all authorities cited in tills and the subsequent sections of this- chapter. < 2 S. W. Bep. 496. 563 § 377 " PREMIUM, ASSESSMENTS AND DDES. died, and that his representative was entitled to a benefit arising from his death ; and that an assessment upon all of the surviving members was actually made by the board of directors, or an executive committee appointed by them, for the purpose of paying said assessments, — are condi- tions precedent to the right of the appellant to demand payment of an assessment from any of its members. And they are not bound to pay any assessment until these things occur, nor do they forfeit their membership by reason of their failure to pay such assessments, unless these things have occurred. And when the society relies upon the failure of any of its members to pay his assessment as a forfeiture of his membership, and benefits under its charter, it must show affirmatively that the assessment was made in the manner indicated ; otherwise the member cannot be said to be in default." In a case in Missouri,^ where the assess- ment uponits members was required to be made by the subor- dinate lodge, the Court of Appeals held that the member was not obliged to pay an assessment levied by the grand lodge. The plain provisions of the charter in regard to the manner of levying assessments cannot be overlooked in search of some rule more equitable ^ and the assessment must be made by the officers or authority named in the charter or by-laws.' If the assessment calls for the exercise of dis- cretion on the part of the directors the power to make it cannot be delegated * and if the laws provide that an order for an assessment should be signed by certain officers, an unsigned order is invalid.* But where the by-laws of a mutual assessment life insurance organization made it the 1 Agnew V. A. 0. U. W., 17 Mo. App. 254. 2 Slater Mut. F. Ins. Co. v. Barstow. 8 E. I. 343. 8 Bates V. Detroit Mut. Ben. Assn., 51 Mich. 587; Agnew v. Ancient Order United Workmen, 17 Mo. App. 254; Susquehanna Mut. Ins. Co. e. Tunkhannock Toy Co., 97 Pa. St. 424. * Farmers' Mut. F. Ins. Co. v. Chase, 56 N. H. 341. » Baker v. Citizens' Mut. F. Ins. Co., 51 Mich. 248. 564 PREMIUM, ASSESSMENTS AND DUES. § 377 duty of the directors to order an assessment upon the death of a member, and empowered the chairman to approve proofs of death, and at a meeting of the directors notice of a death was received, but not the proofs, and the direc- tors instructed the chairman to examine the proofs when they should arrive, and instructed the secretary, if the proofs were found correct, to issue notice of an assessment, and thereafter the proofs were examined by the chairman and approved by him, and the assessment was made in good faith accordingly, and was just and proper; it was held that such an assessment was legal and was not open to the objection that it was made by the chairman and not by the directors.^ If the laws provide that the directors shall fix the amount, they cannot order that a sum 'j not exceed- ing " a certain amount be called, the exact sum must be stated.' An assessment cannot be made for anticipated losses, the laws of the society making no provision for such a call* but they may exercise a reasonable discretion and make allowance for expenses and those who will not pay.* The statement of an assessment need not descend into min- ute detail, but must show with sufficient clearness all facts to enable the member to see the necessity for the call.* Where the laws of a mutual company provided that the membership should be assessed by classes, an assessment ignoring the classes was held invalid.* In gene ral an as- sessment will not be binding unless it appears that it was made when the person assessed was a member; that the losses for which it was made accrued while he was a mem- 1 Passenger Conductors, etc., Ins. Co. v, Bimbaum (Pa.), 10 Cent. Kep. 63; 11 Atl. Rep. 378. 2 Monmouth Mut. F. Ins. Co. v. Lowell, 59 Me. 504. » Rosenberger v. Washington Mut. F. Ins. Co., 87 Pa. St. 207; Cross- man V. Mass. Mut. Ben. Assn., 143 Mass. 435. * Idem; Susquehanna Mut. F. Ins. Co. v. Gackenback, 19 W. N. C. 287. s Lycoming Ins. Co. v. Bixby, 15 W. N. C. 109. • Atlantic, etc., Ins. Co.i;. Moody, 74 Me. 385. 565 § 377 PREMIUM, ASSESSMENTS AND DUES. ber, that it was made as prescribed by the laws of the com- pany.^ If an assessment be not levied according to the constitution and by-laws it is illegal, the member is under no obligation to pay it and his rights are not affected by its non-payment.'' The fact that the assessment is made in accordance with the custom of the order is immaterial, unless it be shown that the member had notice of such cus- tom.' An assessment can be made by the directors after the company has made a general assignment for the benefit of creditors.* The superior governing body of a benefit society, incorporated under the laws of the State where it does business, cannot compel its members to pay assess- ments levied by order of a supreme lodge incorporated ander the laws of another State. A case involving this question was decided by the Supreme Court of Michigan * which thus stated the facts and its opinion: "This is an application for a mandamus to compel the recognition of relator as a member of one of the subordinate lodges of the order of which respondent is the supreme governing authority in this State. As such member he stands in- sured by the respondent in the sum of $2,000, payable on his death, or on his surviving for a specified term of years. He stands suspended by the respondent, and thereby loses his insurance, for refusing to recognize and pay an assess- ment made under the orders of the supreme lodge of the order, which is a corporation existing under the laws of Kentucky, and not subject to this jurisdiction. The as- sessment was made to pay losses on risks taken by the order in other States and by other State grand lodges. The re- * Columbia F. Ins. Co. ■». Kinyon, 37 N. J. L. 33. 2 Underwood o. Iowa Legion of Honor, 66 la. 134; Agnew ». A. O. XS. W., 17 Mo. App. 254; Conductors' Assn. v. Bimbaum (Pa.), 10 Cent. Eep. 63; 11 Atl. Eep. 378; American Mut. Aid Soc. v. Helburn, 8 K7. L. Bep. 627; 2S. W. Eep. 495. 3 Underwood v. Iowa Legion of Honor, supra. * Schimpf V. Lehigh Valley, etc., Ins. Co., 86 Pa. St. 373. * Lampbere v. Grand Lodge A. O U. W., 47 Mich. 429. 566 PREMTOM, ASSESSMEanrS AND DDES. § 378 spondent is a Michigan corporation, existing under chapter 94 of the Compiled Laws of 1871. 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 per- mitting 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 con- trol 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. A mandamus will therefore issue as prayed." ^ The express or implied assent of the member to an author- ity not within the scope of the charter, does not confer such authority nor estop such member from denying it.^ "Where the members are free under the society's laws to pay the assessments or not, the company cannot compel payment nor can the court make an assessment for unpaid losses in proceedings to wind up the company.* Nor can the court assess where authority is conferred only upon the directors.* The question always is whether in the contract the assured promised to pay the assessments, or whether the payment was only a condition, the performance of which was optional. § 378. Who liiable for Assesaments. — Members of benefit associations are under no obligation to pay assess- ments levied for deaths which occurred prior to the time when they became such, nor for those called to pay deaths occurring after the membership had ceased ; but generally, and unless the laws provide otherwise, the issuance and ac- 1 See also Grand Lodge v. Stepp, 3 Penny. 46. * Grand Lodge, etc., v. Stepp, supra. » In re Protection L. Ins. Co., 9 Biss. 188. * Hillr. Merchants, etc., Ins. Co., 28 Grant. Ch. Up. Can. 560; Duff «. Canadian, etc., Ins. Co., 6 Ont. App. 238. Bat see McDonald e. Ross- Lewln, 29 Hun, 87. 507 § 379 PREMIUM, ASSESSMENTS AND DUES. ceptance of the certificate famishes sufficient consideratioi> for the member's agreement to pay any assessment made during the time he should continue a member, and upon his failure an action will lie against him therefor, though of" course if by the laws of the society payment of an assess- ment is optional with the member, no action wiU lie.* Fail- ure to pay an assessment, levied on a member for a death which occurred prior to the date of his certificate, the as- sessment being in violation of the laws of the society, will not invalidate the claim of his representatives to benefits.* Where the by-laws of a benefit society provided that proofs of death should be made in a specified manner and laid be- fore the directors, and if they so decided an assessment should be made upon each member of the class to which the deceased belonged, it was held ^ that the assessment could be made only on those who were members of the plass subject thereto at the time the resolution was adopted. Members are liable for assessments to pay losses which oc- curred during the time they were such, although the insolv- ency of the company has been decreed.* § 379. Notice of Assessments. — Unless the laws of the society or company expressly provide otherwise, there is > McDonald o. Boss-Lewin, 29 Hun, 87; State v. Monitor Fire Assn., 42 Ohio St. 555; ColumbiaF. Ins. Co. v. Kinyon, 37 N. J. L. 33; Farmers', etc., Ins. Co. o. Chase, 56 N. H. 341; Stewart v. Northampton, etc., Ins. Co., 38 N. J. L. 436; Tolford v. Church (Mich.), 33 N. W. Rep. 913; 9 West. Rep. 885; Planters' Ins. Co. v. Comfort, 50 Miss. 662. Allbnt the first of these cases, however, relate to the assessments of mutnal fire insurance organizations. ' KosweU D. Equitable Aid Union, 13 Fed. Rep. 840. ^ MiUer v. Georgia Masonic Mut. Life Ins. Co., 57 Ga. 221. ' Vanatta v. N. J. Mut. Lite Ins. Co., 31 N. J. Eq. 15; Commonwealth V. Mass. Mut. Fire Ins. Co., 112 Mass. 116; 119 Mass. 45. But see Union Mut. F. Ins. Co. V. Spaulding, 61 Mich. 77; 27 N. \V. Rep. 860, where it was held that, after a member has withdrawn from the association, he is not liable for assessments made thereafter on a claim which existed before such withdrawal, but was not discovered until afterwards. 568 PREMIUM, ASSESSMENTS AND DUES. § 379" no liability on the part of a member to pay an assessment nntil notice thereof has been given in the manner provided in the constitution or by-laws. And where the association claims a forfeiture for non-payment of an assessment, it must show that the member was notified in the manner pre- scribed by the by-laws.* If, under the laws of the society which is coiTDo^ed of a supreme and subordinate lodgep, the latter are to pay assessments upon notice from the^ former, no liability is imposed upon the subordinate lodges or its uieaiL)ei-6, until due notice in conformity with th& laws of the order is given, and good standing is not lost by a failure to pay an assessment of which no notice is given.* And no obligation rests upon the members of the subordi- nate lodge to pay an assessment until they in turn are no- tified of it in conformity with the laws of the order.^ The Court of Appeals of Missouri thus states the law in regard to notice of assessments in these associations:* "There are many cases where a person must, at his peril, act upon the knowledge 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 pre- scribes the form and manner in which it is to be given, especially when a forfeiture may result, the party to be af- fected will, as a general rule, not be bound by 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 ta just the form, manner and time of notice that are directed by the statute ; otherwise he will not be bound by the pro- 1 Siebertr. Chosen Friends, 23 Mo. App. 268; Payne ». Mut. Keliel Soc, 17 Abb. N. C. 53; Supreme Lodge K. of H. v. Johnson. 78 Ind. 110; Columbia Ins. Co. v. Buckley, 83 Pa. St. 298; Sinking Springs Mat. Ins. Co. V. Hoff, 2 W. N. C. 41. ' HaU V. Supreme Lodge K. of H., 24 Fed. Rep. 450. ' Agnew V. A. O. U. W., 17 Mo. App. 254 ; Coyle o. Kentucky Grangers' Mut. Ben. Assn. (Ky.), 2 S. W. Rep. 676; Siebert v. Chosen Friends, 23- Mo. App. 268. ' » Siebert v. Chosen Friends, 23 Mo. App. 272. 569 f 379 FBEMIUH, ASSESSMENTS AND DUES. ceedings, although bodily present in the court room, seeing and bearing all that may be done. The indorser of a promissory note may have a personal knowledge of the maker's intention not to pay, or of his failure to pay, at maturity. Yet the holder cannot subject him to any liabil- ity, without a notice of the dishonor, given in the form, time and manner, established by commercial law and usage. Mrs. Siebert might have heard a rumor, or have been in- formed 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 knowl- -edge of the fact was brought home to her in the way for which she had stipulated in her contract with the associa- tion. That contract was visible in the printed laws of the association, and in her acceptance of them in her application for membership." In a somewhat similar case the Su- preme Court of Illinois said: ^ " It was competent for the contracting parties to fix their own terms in this respect, and, having fixed them, they mtfst abide by them. Thirty days after the date of the notice, but not until then, the parties have contracted, if the money is not paid, the cer- tificate shall be void. There was, therefore, no obligation to make a tender, in the absence of a notice, for the pur- pose of preventing a forfeiture." In an action on a <;ertificate issued by a mutual life insurance company, conditioned that failure to pay assessments thirty days after notice should avoid the same, it appeared that two other members of the family of the assured were holders of cer- tificates in the same company, and that three notices of the assessment enclosed in one envelope were received by one of them. It was held ^ that a finding that notice was not mailed to the insured would not be disturbed, such mailing being proved only by the general course of business of the company. 1 Covenant Mut. Ben. Assn. v. Spies, 114 HI. 467. ' Garretson v. Equitable, etc., Assn. (la.), 38 N. W. Bep. 127. 570 PREMroM, ASSESSMENTS AND DUES. § 380 § 380. The Same Subject: Contents of Notice. — The contents of the notice and its form should conform to the requirements of the by-laws or constitution of the society. Thus, where the by-laws requh-ed a notice of an assessment to be given to the members, which should include a list of deaths since the last assessment notice and notifying them •of the amount due to the benefit fund, a notice which did not do this was held void.^ In this case the Supreme Court of Michigan said: "The defendant company was insisting ^n a forfeiture. The entire defense rested upon it to defeat the plaintiff's claim. Forfeitures of policies of in- sui-ance are not to be favored. The beneficiaries under them are, perhaps, we may safely say, in two-thirds of the •cases, persons not learned in the technicalities of the lan- guage in which they are not unf requently couched ; and in construing them courts will, whenever a forfeiture is claimed, preserve, if possible the equitable right of the iolder. The two things omitted in this notice mailed, were to be notified to Mr. Miner; and the time for making payment, which gave the right to the forfeiture claimed, -did not begin to run until the proper notice was given as required by the by-law quoted. And there was something of substance in the part omitted from the notice. In case of the absence or loss of his certificate the notice would furnish him with the only information of the amount he was caUed upon to pay; and the member was entitled to know the number of deaths since the last assessment, for by this in- formation alone could he form any opinion as to the honest administration of the company's affairs, or as to the care exercised in the selection of lives and members."^ A no- tice requiring payment in thirty days when the by-laws 1 Miner v. Mich. Mat Ben. Assn. (Mich), 29 N. W. Rep. 852. * Bates V. Detroit Mut. Ben. Assn., 51 Mich. 587; 17 N. W. Rep. 67; Covenant Mut. Ben. Assn. v. Spies, 114 111. 463; Supreme Lodge K. ot H. V. Johnson, 78 Ind. 110; Siebert v. Chosen Eriends, 23 Mo. App. 268. 571 § 381 PREMIUM, ASSESSMENTS AND DOES. allowed forty, was held a nullity.* WTiere the notice is re- quired to be given by a certain person, as by the general secretary, the notice must be signed by him but may he- mailed by one subordinate, as the local secretary.* § 381. The Same Subject: Service of Notice. — Notice- may be given in any way the by-laws may prescribe, for the parties may agree what shall or shall not be notice. If the by-laws provide that notice may be given by mail it is^ sufficient to prove the mailing: and the failure of the notice to reach the assured, by reasons of its miscarriage in the mail, or the absence of the assured, will not excuse the non- payment of the assessment within the prescribed time.* It is competent for the parties to agree what shall be notice and it is enough to conform to the agreement as contained in the by-laws, as for example, that publication in a news- paper shall be notice.* Where the charter provided that the members should be notified of assessments by circular or verbally, and that if they did not pay within a fixed time they would forfeit their rights, it was held that such personal liability could not attach by merely mailing the notice if it was not in fact received.* In this case the court says: " As to the second point, was the fact of mail- ing the paper which contained the information for the mem- ber sufficient of itself to constitute the notification required by the charter? The proposition here is that it makes m> ' HasMns v. Kentucky Grangers' Mut. Ben. Soc, 7 Ky. L. Bep. 371;. Frey v. Wellington Mut. Ins. Co., 4 Ont. App. 293. * Payne v. Mut. Relief Soc, 6 N. Y. S. Rep. 365; 17 Abb. N. C. 58. ' Greeley v. Iowa State Ins. Co., 50 la. 86; Toe v. B. C. Howard M. B. Assn., 68 Md. 86 ; Weakly ». Northwestern B. & M. A. Assn., 1* Bradw. 327 ; Boraraefe v. Supreme Lodge K. & L. of H., 22 Mo. App. 127 ; Epstein v. Mut. Aid, etc., Assn., 28 La. Ann. 938. * Northampton, etc., Ins. Co. v. Stewart, 39 N. J. L. 486; Epstein b. Mut. Aid, etc., Assn., 28 La. Ann. 938. In case of adyertising the time runs from date of last publication. * Castner v. Farmers' Mut. F. Ins. Co., 50 Mich. 273. 572 PBEMITTH, ASSESSMENTS AND DUES. § 381 ^fference whether the member ever gets knowledge of the assessment upon him or not, provided notice of it is regu- larly mailed to him, and therefore the contention is to be v^iewed on the assumption that he does not get it. The lan^xuage of the charter is that the member is to be • no- tified by the secretary or otherwise, either by circular or a verbal notice.' The consequences to flow from this no- tification are admitted to be important. A fixed personal liability is to depend upon it; and further, in case of failure to respond by jJayment of the sum assessed as com- municated by the « notice,' duringagivennumber of days, "the member is to stand unprotected by his policy and wholly without remedy or redress in' case of loss. In principle it is not easy to distinguish the nature of the re- •quired notification from the office and object of service of process, and there would seem to be as much reason for real notice in the case in question as in the case of an action. The desb-uction of a mail, or accidents preventing the de- livery of matter, or even a considerable delay, might at any time, without fault of the persons insured, eventuate in wide-spread loss and injustice. No construction, open to so much objection, should be admitted unless rendered nec- essary by the terms of the charter ; and they do not require it. On the contrary, they contemplate that the members shaU have real information of the assessment. The pro- vision is not that notice or information shall be mailed, or sent or forwarded. The members are to be ' notified,' — that is, informed ; to have made known to them the fact of the assessment ; and this is permitted to be done either by oral statements to the members or by delivery to them of written statements through the agency of the post-office or someother." If the laws of the society provide that the mem- ber shall be notified of assessments, but does not state how he shaU be notified the notice must be personal and actual.' ' Wachtel «. Noah Widows and Orphans' Soc., 84 N. Y. 28; Siebert v. 573 § 383 PBEMTDM, ASSESSMENTS AND DUES. § 382. From what time the Period allowed for tbe Pay- ment of Assessments Dates. — Where the laws of the society- require that the assessments shall be paid within a certain, number of days " from the date of the notice " thereof, the date will be construed to mean the day it is delivered or received, and not the date written in the notice or the day it is mailed, and in computing the number of days the day on which the notice is received will be excluded.^ Where, by the terms of the contract, the assured agreed to pay to the association an assessment upon the death of any member, " within thirty days after date of said death, being notified thereof by publication in one daily newspaper published in. the city of New Orleans, in English, German, and one in French for five consecutive days," it was held that under this clause the assured was allowed the entire thirty days, commencing and counting from and after the last of th& five days of publication, within which to pay an assessment.^ But the laws of the society may provide otherwise, in which case the agreement of the parties determines the question.' The member may waive the manner of giving the notice of an assessment as by corresponding with the company about paying it.* § 383. Manner of Paying Assessment. — Unless the constitution and by-laws require the payment of the assess- ment in money there is no reason why the same rule should not apply as in the case of life insurance companies and payment he made by note, check, money order or anything- Chosen Friends, 23 Mo. App. 268 ; Castner v. Farmers' Mut. F. Ins. Co., supra; Borgraefe v. Supreme Lodge, Knights and Ladies of Honor, 22 Mo. App. 127. 1 Protection L. Ins. Co. v. Palmer, 81 HI. 88; National Mut. Ben. Assn. V. Miller (Ky.), 2 S. W. Rep. 900; Wetmore v. Mut. Aid, etc., Assn., 23. La. Ann. 770. ' Wetmore V. Mutual Aid, etc., Assn., supra. » Weakly v. Northwestern Ben. & Mut. Aid Assn., 19 Bradw. 327. * HoUister v. Quincy Ins. Co., 118 Mass. 478. 574 PREMIUM, ASSESSMENTS AND DUES. § 384 that may be accepted by the agent as money. ^ It is no ex- cuse for non-payment of an assessment that the company owes the member a less sum, if he does not offer to pay the balance.^ Payment may be made to any oflScer authorized to receive, either in the lodge or on the street,* any custom and usage to the contrary notwithstanding.* Unless the laws of the order provide that local, or subordinate, lodges may extend credit for assessments, this cannot be done, and if, by the rules of the society, non-payment of an assessment ipso facto works a suspension, or forfeitiire, then the only thing that wiU save the non-paying member is for his lodge to pay the assessment for him. This it may do, unless its laws forbid, and in event of its paying the assessment the member becomes the debtor of the lodge. But if the laws of the order require that to suspend a member for non-pay- ment of an assessment some affirmative action be taken by the lodge, failure on the part of the latter to do such affirmative act, required to effect a suspension, does not change the status of the delinquent member who remains in good stand- ing until suspended by the lodge. This failure on the part of the lodge to take action may virtually amount to giving credit, for the member may pay up before anything is done. And the lodge thus remiss in its duty is of course responsi- ble to its superior for its action.* § 384. What does not Excuse Non-payment. — Neither insanity, sickness nor absence is an excuse for non-pay- ment of assessments, the payment being an act that can be 1 Kline v. National Ben. Assn., Ill Ind. 462; 11 N. East. Rep. S20; 9 West. Rep. 284; Protection L. Ins. Co. v. Foote, 79 HI. 361; Lyon v. Travelers' Ins. Co., 55 Mich. 141; Life Ins. Co. v. Dunklee, 16 Kan. 158. * Hollister v. Qnlncy Ins. Co., 118 Mass. 478. ' Manson v. Grand Lodge, etc., 30 Minn. 509; 16 N. W. Bep. 395. * Ibid. < Borgraefe «. Supreme Lodge K. & L. of H., 22 Mo. App. 137, post, § 388. 575 ^ 385 PREMIUM, ASSESSMENTS AND DUES. performed for the member by some other person.^ Nor can the fact advants^e that enoagh was due the member from another, but distinct, fund of the lodge to pay the assessment.* But it would, of course, be competent for the parties to agree in a competent way, as in the by-laws ■of the society, that sickness or any other condition of the member should excuse the payment. § 385. Consequences of Non-payment: Suspension: Reinstatement. — Unless the constitution and laws of the society make non-payment of an assessment operate as a forfeiture, the failure of a member to pay such assessment only makes him liable to expulsion from the society or sus- pension from its benefits, for which some affirmative action of the lodge, or society, is necessary, and the mere act of the secretary in marking the member's account as " sus- pended " is not sufficient.^ If the member is by some af- firmative act suspended by the lodge, and has notice of such act and does not exercise the right of appeal secured him by the laws of the order, the action of the lodge, if such lodge had jurisdiction, is final and cannot be assailed in an action on the certificate after a member's death.* But the attempt of a superior officer, or lodge, to suspend a lodge -or its members, without notice and authority to try such lodge or members, is a usurpation which cannot affect the legal rights or status of any one.* Forfeiture cannot be declared after the death of the member.* If, however, by ' Hawkshaw b. Snp. Lodge K. of H., 29 Fed. Bep. 773; Carpenterr. •Centennial M. L. Assn., 68 la. 453; Toe p.Benev. Assn., 63 Md. 86; ante, § 359. * Ancient Order United Workmen r. Moore, 1 Ky. Ii. Bep. 93. ' Schen v. Grand Lodge, etc., Independent Foresters, 17Fed.Bep. 214; Snpple V. Iowa State Ins. Co., 58 la. 29; Colnmbia Ins. Co. v. Buckley 83 Pa. St. 293; Olmstead v. Farmers' Mut. F. Ins. Co., 50 Mich. 200. * Karcher v. Supreme Lodge K. of H., 137 Mass. 368; Chamberlain «. IJncoIn, 129 Mass. 70; Mnlroy v. Knights of Honor, 28 Mo. App. 463. ' Hall B. Supreme Lodge K. of H., 24 Fed. Bep. 460. * Olmstead v. Farmers' Mut F. Ins. Co., 60 Mich. 200. 576 PREMIUM, ASSESSMENTS AND DUES. § 285 the laws of the society, non-payment of an assessment op- erates as a forfeiture, the member must elect, every time he is called upon to pay an assessment, either to pay within the stipulated time, or suffer the penalty of loss of mem- bership and its benefits by neglecting or refusing to pay within that time.^ Judge Seymour D. Thompson, of the St. Louis Court of Appeals, thus states the rule and its modifications : ' "It was argued in behalf of the plaintiff, at the bar, that there was no forfeiture in this case, because the declaration of a forfeiture is a judicial act, and neither Ada liodge, nor any other judicatory having the power to declare a forfeiture, had so adjudged. This contention has no foundation, in view of the fact that under the provision of section three, of law two, above quoted, it is not neces- sary that the lodge or any other judicatory of the order should adjudge a forfeiture against a delinquent member for non-payment of an assessment for a death benefit, but that, on the contrary, the suspension attaches by operation of law. There is, in view of this provision, a plain dis- tinction between this case and cases which have arisen under the constating instrxmients of mutual insurance compa- nies, and other benevolent orders of this character, where the governing statute recites that for the non-payment of dues, or other named delinquency, the member may he sus- pended by the lodge or other judicatory. Here the mem- ber is not suspended, until the lodge or other designated judicatory exercises the power of suspension.* The reason is that, whatever right the lodge, or the order, may have against the member for an infraction of its rules, must be sought in conformity with the laws and rules of the order. The remedy therein prescribed must be exhausted before resort can be had to the judicial courts.* But where, as in 1 Bood «. Railway Passenger, etc., Assn., 31 Fed. Rep. 62, * Boi^raefe n. Eoiights of Honor, 22 Mo. Ai-p. 127, 142. » Olmstead v. Mut. F. Ins. Co., 50 Mich. 200. ■• Chamberlain r. Lincoln, 129 Mass. 70. 37 577 § 285 PEEMIUM, ASSESSMENTS AND DUES. this case, the suspension attaches by operation of law upon an event named, and the member dies before the suspension has been set aside, in conformity with the roles of the order, there can be no recovery upon his benefit certificate." This view is generally sustained by the authorities.^ Where the constitution provides that no benefits are to be paid while the lodge is under suspension for refusing, or neg- lecting to forward the assessments to the supreme lodge, and a member dies while his lodge is suspended, the rights to benefits, which were suspended with the suspension of the lodge, are restored with its restoration.^ The laws of benefit societies generally provide that a member, sus- pended for non-payment of an assessment, may be restored upon doing certain acts. On principle these laws are to receive a liberal construction. Where the rights of a sus- pended member were to be restored, upon his payment of arrearages, it was held that he did not have to tender the amount at a meeting of the lodge, but anight pay to the proper financial officer at any place, and that no consent or aption on the part of the lodge was necessary to his restor- ation.' A case was recently decided in New York,* in which the facts were these : The defendant issued to one Dennis a certificate of membership, to which were annexed rules and conditions, one of which required that the mem- bers should, within thirty days after the mailing of a notice of assessment, pay the same, and provided that if the 1 m. Masons' Bener. Soc. b. Baldwin, 86 m. 479; Bood v. BaQway Passengers', etc., Assn., 31 Fed. Bep. 62; Madeira v. Merchants' Exch., etc., Soc, 16 Fed. Bep. 749; 5 McC. 258; Toe v. B. C. Howard M. B. Assn., 63 Md. 86; McDonald v. Boss-Lewin, 29 Hun, 87; Blanchard V. Atlantic Mut. F. Ins. Co., 33 N. H. 9; Am. Mnt. Aid Soe. v. Kilbnm, 7 Ky. L. Bep. 750. » Sap. Lodge K. of H. v. Abbott, 82 Ind. 1. » Manson v. Grand Lodge A. O. U. W., 30 Minn. 509; 16 N. W. Bep. 395. * Dennis v. Massachusetts Ben. Assn., 47 Hun, 338; one judge, how- ever, dissented. 578 PREMIUM, ASSESSMENTS AND DUES. § 385 assessment should not be received by the company within that time the contract should lapse and be Toid, but that " for valid reasons to the officers of the association (such as a failure to receive notice of an assessment), he may be reinstated upon paying assessment arrearages." On Feb- ruary 12, 1886, a notice of an assessment was mailed to Dennis and received by him, but was not paid within the thirty days, he being stricken with apoplexy on March 8th, and remaining unconscious until March 19th, when he died. The beneficiary, on March 31st, tendered the arrearages to the company, which declined to receive them and refused to be bound by the policy. The action was brought by the assignee of the beneficiary and on the trial the court directed a verdict for the defendant. On appeal it was held that this was error, that the question as to whether the fact that the party assessed, who had paid many previous assessments, was rendered powerless, by a sudden calamity, before the expiration of the thirty days, was not a " valid reason" within the meaning of the contract, should have been submitted to the jury. In this case, the majority of the court say: " What right would the member have had if he had recovered his reason on the day he died. In the first place, the words were intended to be operative. The de- fendant obtained the premiums or agreement to pay assess- ments upon them. They assured the members that, if a valid reason was furnished for the default, it should not be conclusive. The use of the restrictions as to the validity of the excuse to the officers of the company did not mean to make them sole arbiters of the validity of the reason. The company illustrate by citing an instance of a good ex- case by the term ' such as a failure to receive notice of an assessment.' If an assessment notice had not been re- ceived without the fault of the member, can it be doubted but that the officers were bound to acknowledge it and re- instate the member upon payment of arrearages? The 579 § 385 PREMIUM, ASSESSMENTS AND DUES. company say ttiat is a good excuse and impliedly say that other good reasons for the default must be ac- knowledged also. The Court of Appeals have decided that a discretion given to trustees is not personal.^ Is the reason assigned a valid reason under the contract. There can be no doubt of this fact. The assessed had thirty days and before he paid the assessment he was rendered power- less by sudden calamity — his intent to pay is manifest by numerous previous payments. This was the construction put on the rule by the defendant. They again, after he was unconscious, notified the member of the forfeiture for non-payment and that the contract might be renewed if in good health. This condition, in respect to good health, is not in the rule and the officers had no right to add it to the rule. If a valid reason existed for the default the member must be reinstated, because of the valid reason for the de- fault and not because he had a valid reason and was in good health. The rule, as created by the company in this re- spect, would exclude cases where it was vital that they should be included in the contract. If the good reason was rejected in cases of ill health or death the insured will lose a real value in the contract. If members become sick or die the policy is at an end, no matter how completely the default may be excused. This would make a very unfair contract, not within the words of the rule and one which the company would be unwilling to print in its rules. We, therefore, think that the validity of the reason assigned should have been submitted to the jury." A similar ques- tion arose in New Jersey,^ the facts being as follows: The by-laws of an unincorporated mutual insurance ast^ociation provided that in case a member had, for failure to pay an assessment promptly, been dropped from the association by ' HuU V. Hull, 24 N. Y. 647; The Duplex Boiler Co. r. Garden, 101 Id, 387. s Van Houten v. Pine, 38 N. J. Eq. 72. 580 PREMIUM, ASSESSMENTS AND DUES. § ?85 the secretary, the board of directors should have power to reinstate him on his presenting them a reasonable excuse for such failure, and paying the sum in arrear. A member being delinquent appeared before the directors and offered a sufficient reason for his delinquency, and the board re- fused to reinstate him, because they alleged that his health was then precarious. He died very soon afterwards. A biU was filed against the society and the court held that it would, after the death of the member, examine into and de- termine the adequacy of the reason offered by the member for his delinquency, and, in a proper case, compel the asso- ciation to pay the amount of the insurance. The court says: " The excuse given by Van Houten when he ap- peared before the board and asked to be reinstated was am- ple and ought to have been accepted. He had provided for payment of the money within the time limited by the by-laws by engaging Mr. Tucker, a director, to attend to the matter for him and prevent any delinquency, and Mr. Tucker had, at his request, undertaken to do so. It was merely Mr. Tucker's forgetfulness that caused the delinquency. It ap- pears by the answer that the excuse was considered satisfac- tory, but that Mr. Van Houten' s physical condition at the time of making the application was taken into the account adversely to him. In the letter of the president to him, set forth in the answer, that is given as the only reason for denying the application. The letter states that in the opin- ion of a large majority of the members of the board of directors it was deemed inexpedient to restore him to mem- bership in consequence of his impaired health. * * * It is manifest from the testimony that the by-laws were en- forced asainst Van Houten with unwonted vigor and strin- gency. But conceding the right of the association to do so it was nevertheless clearly the right of Van Houten, under the circumstances, to be reinstated. And in such a suit as this, against such an association (an unincorporated mutual 581 § 386 PREMIUM, ASSESSMENTS AND DUES. benefit society), and under such circumstances as this case presents, it is proper for the court to determine the question whether the member was properly excluded or not ; to decide whether the action of the trustees or agents to whom the management of the affairs of the association was intrusted ' was lawful or not, to judge whether the member, by the imputed misconduct or delinquency, ought reasonably to be held to have forfeited his claim to the advantages which the society promised, and in view of which he had, up to the time of the alleged exclusion, discharged his duties to it." ^ § 386. To Whom Money Collected on an Assessment Be- longs. — Money received by the trustees of a mutual benefit association, from an assessment imposed upon the members to pay to the widow of a deceascjd member the amount which she is entitled to recover, belongs to the association and not to the widow.* And it cannot be claimed that, when such an association has received the money from an assessment for the purpose of paying a claim on a certificate issued to a deceased member of the society, the association thereby became the agent of its members for the purpose of paying the money upon the claim and had no right to contest its validity or withhold the payment of the money. While the society is in a certain sense the agent of the members of the company, it is an agent with special and definite powers and limitations, and the true and obvious construction of these powers and limitations forbids payment upon a claim which it is able to show was procured through misrepresen- tation or fraudulent suppression of facts, concerning which it required answers from the deceased member when he applied for membership. That the association has realized the money with which to make payment is no waiver of the duty to see to it that payment was due. That duty it still ^ See also Oates v. Supreme Court of Foresters, 4 Ont. Bep. 636. ' Fisher ». Andrews, 37 Hun, 176. 582 PREMIUM, ASSESSMENTS AND DUES. § 389 owes to it3 members who have paid their assessments trusting to the fidelity of the company to protect them and the fund from invalid claims. ^ § 387. Authority to Accumulate Surplus from Assess- ments. — A benefit society cannot accumulate a reserve fund, or surplus in excess of the amount required to pay death claims, unless its laws confer such authority and there is nothing to the contrary in the statutes of the State authorizing the socie^. Under the Massachusetts statute it has been held that societies organized under it cannot become financial institutions with the capacity of accumu- lating and holding funds to an unlimited amount, but can only hold at one time the amount of one assessment.* § 388. Power of Subordinate Ijodges to Waive Re- quirements of Laws of the Order as to Assessments. — Whether subordinate lodges can waive the requirements of the laws of the order of which they are constituent parts in regard to assessments has been questioned ; ^ but ques- tions of waiver and estoppel in regard to assessments of benefit societies wiU be more appropriately discussed in a subsequent chapter upon the subject of waiver and estop- pel in general and to that the reader is referred.* § 389. Dues. — When the affairs of a mutual benefit so- ciety are conducted by means of a complex organization consisting of grand, or supreme, and subordinate lodges, the members of the latter enter into an obligation to pay two kinds of contributions. The first is the assessments, levied by the superior authority to meet death benefits ; the I Mayer v. Equitable Beserve Fnnd L. Assn., 42 Hon, 237. See also Swett V. Belief Society, 78 Me. 541. ' Grossman t7. Massachusetts Ben. Assn., 143 Mass. 435; 3 N. Bug, Eep. 517; 9 N. East. Bep. 753. ' Borgraete v. Sap. Lodge, E. & I<. of H., 22 Mo. App. 127. * Post, § 431, et seq.; ante, § 383. 583 § 389 PREMIUM, ASSESSMENTS AND DUES. second is the amount required to be paid, in monthly or quarterly installments to the subordinate lodge for its sup- port. In some associations, not consisting of local and grand lodges, a stated sum is to be paid annually or oftener, in addition to assessments on death claims, for the expenses of the organization. The first class of contributions, of which we have already treated, is called " assessments," the second is known as " dues." The laws of the orders generally provide that the dues be paid by each member at certain times without notice and no action of the lodge or its officers is required to make them due and payable. The provisions of the laws in this respect are also part of the contract and their construction is governed by the same rules as the provisions in respect to the assessments. If non-payment of the dues works a forfeiture, the provisions of the laws are to be strictly construed. Non-payment of dues, however, if so stipulated, will of itself work a forfeit- ure.^ But if not so provided in the by-laws, expulsion, or suspension for non-payment of dues must be upon trial and after due notice.* Unless the by-laws so provide, dues for the monthly, quarterly, or semi-annual term are not payable in advance and a member is not in arrears for their non-payment until after that term has ended. In a case where the by-laws provided that a member should not be in good standing who was more than six months in arrears,* it was held that the six months began to run from the day after the last day of the term for which the dues were to be paid. In this case the court said: " Each lodge has the power to regulate that matter for itself, may make 1 Mandego e. Centennial Mat. Life Assn., 64 la. 134 ; American Mat. Aid Soc. V. Helbum, 8Ky. L. Eep. 627; 2 S. W. Rep. 495. * Diligent Fire Co. v. Commonwealth, 75 Pa. St. 291; Commonwealth V. Beneficial Soc, 2 S. & B. 141 ; Commonwealth e. German Soc, 15 Fa. St. (3 Hams), 251; Borgraefe v. Sup. L. K. of H., 22 Mo. App. 127; Wachtel v. Noah Widows and Orphans' Soc, 84 N. T. 28; 9 Daly, 476. ' Wiggin V. Knights of Pythias, 31 Fed. Eep. 122. 584 PREMIUM, ASSESSMENTS AND DIIES. § 389 the dues payable in advance, or at the end of the period for which they are leviable; but the pay-day does not come nntil the time fixed for it, and they cannot, in the nature of the words used to impose the forfeiture insisted upon, be in arrears until that day is piist, whatever day it be. The fact that the members may pay the dues at any time during the term, that is to say, in advance of the day fixed for obligatory payment, does not at aU affect the question ; nor does the fact, if it be so, that most of the members do pay before that final day of reckoning the charge, affect it; nor does the opinion of the members, or of the officers of the lodge, or of the lodge itself affect it. These words of the by-laws become part of the contract for Ufe insurance, and, in the courts, must receive the ordinary interpretation put upon the contracts containing them." ^ If, by the by- laws of the order, or society, notice is to be given before the dues are payable, such notice is a condition precedent, which must be performed before forfeiture for non-pay- ment can be enforced. The same rules apply to dues as to assessments in respect to notice, payment and forfeiture. The Court of Appeals of Maryland has accurately stated the law as to notice in an opinion which may here be given with advantage. The case was one involving the liability of the association for a benefit payable on the death of the member, and the defense was forfeiture for non-payment of dues. The facts are sufficiently stated in the opinion. In this case^ the court said: " The whole contract between the appellant association and Robertson, the insured, is contained in the certificate of membership issued to Rob- ertson, and the rights of the parties in this case must de- pend upon that certificate alone. • • • The first article of iiie certificate of membership is as follows: ' 1. It is ■ Watson c. Jones, 13 WaU. 679; McMuny v. Supreme laige K. of H., 20 Fed. Rep. 107. » Mntoal Endowment Ass. Assn. v. Eseender, 59 Md. 463. 585 § 389 PREMIUM, ASSESSMENTS AND DUES. agreed, that the said Nathaniel C. Eobertson, shall paj'^ the sum of twenty-five dollars, as a membership fee; and further the sum of $2.50 quarterly, for expenses, to be paid said association, and also such sums as may be required by the conditions hereto annexedj for mortuary assessments.' If this article was the only part of the certificate that re- lated to the quarterly dues, it would have been the duty of the insured to have paid these expenses without any call or notice. But by the sixth clause in the certificate a differ-, ent face is put upon the matter-. That clause is in these words : '6. The holder of this certificate further agrees, and accepts said certificate upon the express condition, that if the said assessment or quarterly dues shall not be paid at the office of said association, within thirty days after date of notice, the certificate shall be null and void and of no effect.' By this latter clause the association assumed the bur- den of giving the insured a notice, and the insured did not forfeit his membership, if he paid his dues at any time within thirty days from the date of such notice. Taken and construed together as the first and sixth clauses of the certificate must be, they mean this, that while the insured, Robertson, after having paid his membership fee of twenty-five dollars, agreed to pay the association two dollars and a half quarterly, the association agreed not to forfeit his membership, unless he made default in the pay- ment of his quarterly dues and assessments for more than thirty days after they gave him notice. There is no ques- tion raised as to the assessment for death, but only as to the quarterly dues. Robertson may have neglected or omitted to pay his quarterly dues, but that fact alone wouM not, without the notice from the company, deprive him of his membership. The notice was a condition precedent to the forfeiture and it becomes important to inquire what such notice should contain. We think it quite clear that the notice contemplated by the sixth clause, must mean a 586 PREMIUM , ASSESSMENTS AND DUES. § 389 notice given after the quarterly dues were payable. It does not mean a notice given in advance and before the quarterly dues were payable; for if that were so, Robert- son could have been notified on the very day of the issue of the certificate (Dec. 23, 1879), that he must pay his quarterly dues for the whole of the next year or even longer. This was certainly not contemplated by either party to the contract, and is not borne out by the language of the clause. If Robertson, then, was entitled to his no- tice after his dues were payable, the first notice that the company could properly give him, was after his first quar- terly payment fell due. Then the notice givea him must be reasonably in accord with the contract, and must call upon him, or notify him with reasonable certainty what he must do within the next thirty days. Now the notice ac- tually sent to Robertson, according to the defendant's tes- timony, was the following: 'Baltimore, Md., April 15th, 1880. You are hereby notified, that your annual dues for the year ending April 15th, 1881, are to be paid at this office. Amount $10. Send this notice back with your re- mittance, when it will be receipted and returned to you.' By that notice Robertson was called on to do what he had not contracted to do. He had contracted to pay $2.50 at the end of each quarter, and was called on to pay ten dol- lars as an annual fee, and in advance. Nor did the associa- tion do what they had contracted to do. Their contract was, as we have before said, to notify the insured after his pay- ments were due, but they in fact notified him of claims that were to fall due in the future, and demanded payment in advance against the terms of the agreement. Now, for- feitures are not favored in the law, and the courts are always ready to seize hold of any circumstances that can reasonably avoid so harsh a measure as a forfeiture. In this case the association relies upon this notice as sufficient 587 § 389 PREMIDM, ASSESSMENTS AND DUES. ground for the forfeiture of the interest of Robertson in the company. But in all such cases where a forfeiture is sought to be enforced through a notice, as a condition precedent, the party seeking to enforce it must show that he has complied at least with reasonable certainty with all the conditions precedent, and the other party is entitled to such notice as his contract calls for. In the case of John- son V. Lyttle's Iron Agency,^ the court unanimously held that a notice to a shareholder in which he was charged more interest than he ought to have been, was on that account bad, and not sufficient to cause a forfeiture of his shares, and lay down the rule that the condition precedent must be strictly complied with. While we are not inclined to adopt a rule so strict as the one laid down in this case, still there is a wide, and in our opinion fatal, variance in this case be- tween the notice actually given, and the one required by the terms of the contract, both in the amount required to be paid, and the time of the payment. Such a notice is wholly insufficient to work so grave a consequence as the forfeiture of a valuable interest to the insured." In a case in Illinois ^ the defendant was a voluntary association com- posed of subordinate lodges. The constitution adopted for the government of such subordinate lodges provided that " 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." The subordinate lodge in question never adopted any by-law on the subject of suspension as required by this provision. Deceased was declared suspended from such lodge for non-payment of dues. Six days before his sudden death by heart disease, he gave the amount due to the secretary, who took the money and said he would bring the matter before the lodge » 6 Chan. Div. 687. * District Grand liOdge ti.[Cohn, 20 Bradw. 335. 588 PREMIUM, ASSESSMENTS AND DUES. § 380 at its next meeting. The court held that the suspension of deceased was without authority and void and that the pay- ment was in time. Further, that the fact that the lodge, in the absence of a by-law, was accustomed to pursue a par- ticular course in regard to suspensions, did not in this case give such custom the force of a by-law. 589 CHAPTER Xn. MATimiTT OF CONTRACT: PROOFS OF LOSS: GOOD STANDING. § 895. Maturity of Life Insurance Contract: Amount to be Recovered. 395a. Permanent Disability : Accident. 396. Who Entitled to Receive Amount of Insurance. 397. Rights of Creditors when Payees in Policies. 398. Liens on Insurance Money. 399. Creditors as Beneficiaries of Members of Benefit Societies. 400. Compliance Trith Terms of Policy as to Payment Relieves In- surer. 401. Conditions Precedent to Recovery to be Performed after Loss. 402. No Liability Civiliter at Common Law for Destruction of Humai^ Life. 403. Conditions as to Notice and Proofs of Loss. 404. Substantial Compliance with Conditions Sufficient. 405. Notice of Loss. 406. Proofs of Loss ; By Whom Made. 407. Form and Contents of Proofs. 408. To Whom and at What Place Proofs Must be Furnished. 409. When Company Refuses to Furnish Blank Forms. 410. Effect of Failure to Furnish Proofs. 411. On Receipt of Proofs of Loss Insurer must Point out Defects, If any Exist, within a Reasonable Time. 412. Objections to Proofs Must be Specific: Insurer Must not Mislead Assured. 413. When Proofs are Unnecessary. 414. Good Standing. § 395. Maturity of Ijife Insurance Contract: Amount to be Recovered. — In contracts of life insurance com- panies and those of benefit societies the money becomes owing from the insurer whenever the contingency insured against happens, although generally, by the terms of the contract, it is not due or payable until a certain number of days thereafter. Life insurance companies agree to pay the amount of the insurance either upon the death of the 590 MATURITY OF CONTKACT. § 395 insured, or wheii he shall arrive at a certain age; benefit societies undertake to pay either upon the death of the member, or when he shall become permanently disabled. Certain benefits may mature when the member is sick, but of these we have already spoken.^ With life insurance companies and benefit societies alike, death, therefore, is generally the event which is to determine the contract and mature the liability. Unlike fire insurance contracts, where the insurer may never be called upon to pay, because the property may never burn, the undertaking of the life in- surance corporations is to meet a liability, which is certain, for death is inevitable, and, if the premiums be paid by the insured according to agreement, the company must prepare to, at some time, fulfill its obligation. The sum to be paid is certain, for it is set forth in the policy, which is, as we have seen, a valued policy, because the full amount named therein is to be paid without deduction or allowances,^ for the loss is total. No limit has ever been fixed upon the amount for which one can insure his life, for human life is something, which, in one sense, is priceless, and for which no compensation can be made, consequently a man's inclina- tion, or ability to pay the premiums, can alone establish bounds to the insurance he may carry on his life; and when this life is ended, the amount Tto be recovered is that named in the contract and it cannot be questioned. When a creditor insures the life of a debtor different principles apply, for public policy neither permits a person to effect an insurance upon a life in which he has no insurable in- terest, nor does it allow the creditor to make the amount of his insurance upon his debtor's life disproportionate to the debt.' 1 Ante, § 94. * Chisholm v. National Capitol L. Ins. Co., 52 Mo. 216; Miller «. Eagle L. & H. Ins. Co., 2 E. D. Smith, 268. » Mitchell V. Union Ii. Ins. Co., 45 Me. 104; ante, § 248, et seq.; post, §397. 591 f 395a MATURITY OF CONTEACT. § 395a. Permanent Disability : Accident. — In some benefit societies the benefit, or part of it, is payable to the member himself if he shall become permanently disabled. What is permanent, or total, disability, within the meaning of such provisions depends upon the language, used in the contract defining it. Where the constitution of a 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 " permanently prevent the member from following any occupation whereby he or she can obtain a livelihood ;" it was held,^ that the words, " or other occupation," in the first mentioned section, could not beheld to mean "or other of the same kind;" and the definition in the latter section was conclusive against one who, disabled from his own profession, had been working at another totally dissimilar one. " Total disability " na- turally means being totally disabled from all kinds of busi- ness * unless by the contract the disability is to be only from the usual occupation of the assured.^ In a cage decided by the Supreme Court of Maine,* the insurance was to be paid " if the assured shall sustain bodily injuries by means afore- said, which shall, independently of all other causes, imme- diately and wholly disable and prevent him from the prose- cution of any and every kind of business pertaining to the occupation under which he is insured." In construing this the court said : ' ' The object to be accomplished by this contract was indemnity to the plaintiff for loss of time from » Albert v. Order of Chosen Friends (TJ. S. C!ir. Ct. D. Ky.), 34 Fed. Rep. 721. 2 Lyon V. Eailway Passenger Ass. Co., 46 la. 631 ; Saveland v. Fidelity & Casualty Co. (la.), 30 N. W. Kep. 237; Rliodes r. RaUway Pass. Ins. Co., oLans. 77. ' Hooper v. Accidental Death Ins. Co., 5 H. &N. 546; 29 L. J. Ex. 340; 8 W. R. 816; affirmed, 5 H. & N. 557; 29 L. J. Ex. 484; 7 Jnr. (n. s.) 74, Ex. Ch. * Yoxing V. Travelers' Ins. Co., 13 Atl.Rep. 896; 6 N. Eng. Rep. 432. 592 MATURITY OF CO^TRACT. § 396 being wholly disabled from prosecuting his business by an injury received as specified in the policy. He was not able to prosecute his business unless he was able to do all the substantial acts necessary to be done in its prosecution. If the prosecution of the business required him to do several acts and perform several kinds of labor, and he was able to do and perform one only, 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 tire business of his occupation. * * * To entitle the plaintiff to recover, 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 satisfied them (the jury) that his injury was of such a character and to such an extent that common care and pru- dence 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 specified physician called to treat him would direct him so to do." Under a provision in the laws of a society providing for payment to certificate holders who have become disabled by accident, the word, accident, will be given its primary and usual signification, as being an event that 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.^ § 396. Wbo Entitled to Beceive Amount of , Insur- ance. — The payee, or beneficiary, is usually named both in the policies of life insurance companies and the certifi- cates of benefit societies and is the person entitled to demand and receive the sum stipulated to bo paid upon the happening of the agreed contingency. The assured, or 1 Supreme Council o. Garrigus, 104 Ind. 133.. 38 593 § 396 MATCRITT OF CONTRACT. person to whom the insiirance is payable under a policy of a life insurance company proper, generally has a vested interest in the contract; so, if the policy on the life of one person is payable to another and the latter die before the termination of the life insured, then, when the policy ma- tures, the personal representatives of the assured are the proper parties to collect the amount of the insurance. The laws of benefit societies generally provide who shall take in default of a valid designation of beneficiary, or in case the beneficiary dies in the life time of the member. If there is no exercise of the power of designation, or if the member survive the beneficiary, there may be a lapse of the power so that the benefit is payable to no one.^ It has been held that if the original designation of a beneficiaiy is void, or if the member survives the beneficiary , the benefit is for the legal heirs of the member and theaction is to be pros- ecuted in. the name of his administrator, who is the proper party to receive the money .^ But the question as who is the party entitled to receive is one generally determined by the constitution and laws of the society and has already been considered.^ A policy of life insurance issued to one hav- ing no insurable interest in the life insured is void and there can be no recovery thereon because it is a wager and against public policy.* The personal representatives of the insured in a life insurance policy, taken out by one who has no in- surable interest in the life insured, have no right of action on such a policy against the insurer, for there is no privity of c6ntract between them, and the insurer is not affected by a notice from such personal representatives not to pay over ' Ante, chap. VII. * Rice B. New England M. Aid Soc. (Mass.), SN.Eng. Rep. 816; 16 N. East. Sep. 634; Rindge !>. Same (Mass.), 15 N. East. Rep. 628. 8 Ante, chap. VII. * Life Insurance Co. v. McCmm, 36 Kan. 148; 12 Pac. Rep. 617; Rose -0. Mut. Ben. L. Ins. Co., 23 N. Y. 516; Helmetag v. MUler, 76 Ala. 183; ante, § 248, et seq. 594 MATCRITT OF CONTKACT. § 307 the money upon such a policy.' But the personal repre- sentatives of the insured under such a policy may recover its proceeds, if the money thereon has been paid to one not having an insurable interest, less the premiums paid.* § 397. Rights of Creditors when Payees in Policies. — Policies of life insurance are frequently made payable, or assigned, to creditors of the insured. In such cases ques- tions have often arisen as to who was entitled to recover and as to the amount of the recovery. II seems settled that if there is only a reasonable margin between the amount of the debt and that of the insurance the creditor can recover and retain the entire proceeds." But where the excess of the policy over the debt is so large as to indicate a wagering transaction, the creditor, if he collects the entire amount, can hold only th« amount of his debt and the premiums paid by him. if any, with interest, and must account to the per- sonal representatives of the insured for the balance.* The Supreme Court of Pennsylvania on two occasions * has said that the amount of a policy taken out by a creditor on the life of his debtor ought to be limited to the amount of the debt with interest thereon during the expectancy of the life 1 Bomberger p. United Brethren, etc., Soc. (Pa.), i Cent. Bap. 694; 6 Atl. Rep. 41 ; Coon c. Swan, 30 Vt. 6. • Gilbert v. Moose, 104 Pa. St. 74 ; 49 Am. Rep. 570 ; Wamock v. Dayls, 104 U. S. 775; Cammack v. Lewis. 15 Wall. 643; Amick v. Butler, 111 Ind. 578; Helmetag p. Millei, 7ti Ala. 183; Datton v. Willner, 52 N. Y. 312; Drysdale d. Piggott, 8 DeG. M. & G. 54S; I^ea v. Hinton, 5 DeG. M. & G. 823. 3 Amlck V. Bntler, 111 Ind. 57S; 9 W^est. Rep. 842; 12 N. East. Uep. 518; BatdorfE r. Fehler (Pa.), 8 Cent. Rep. 230; 9 Atl. Rep. 468; Grant I.Kline (Pa.), 9 Atl. Rep. 150; 7 Cent. Rep. 626. * Ruth V. Kattennan, 112 Pa. St. 251 ; Gilbert v. Moose, 104 Pa. St. 74; Cooper c. Schaeler (Pa.), 9 Cent. Rep. 601; 11 Atl. Rep. 548; Coon V. Swan, 30 Vt. 6; Wamock v. Davis, 104 U. S. 775; Cammack v. Lewis, 15 Wall. 643. See ante, § 248, for a discussion of the subject of insurable interest. « Grant v. Kline, 7 Cent. Bep. 626; 9 Atl. Rep. 150; Cooper r. Schaefer, 9 Cent. Rep. 601; 11 Atl. Rep. 548. 51)5 § 397 MATURITY OF CONTRACT. insured, according to the Carlisle tables, and the premiums. If a policy of life insurance is valid when issued it does not cease to be so by the termination of the interest of the insured in the life insured, nor is it affected by the subse- quent diminution of such interest, unless it is so stipulated in the contract.^ If the policy is taken out by the creditor on the life of his debtor, who pays the premiums, upon the payment of the debt the debtor is subrogated to the rights of the creditor. But if the creditor pays the premiums then his right to recover is not affected by the diminution, or payment, of the debt, or a subsequent cessation of in- surable interest, nor by the fact that the debt is barred by statute of limitations or a discharge in bankruptcy. This has long been the rule in England where, even though the debtor knows that his creditor intends to insure his life and regulates his conduct accordingly, still if the creditor pays the premiums and has no bargain with the debtor for repayment nor charges the premiums to him, neither the debtor nor his represent atives have any claim'to the money.* And that this is the rule also in America can hardly be doubted. In a case in the Supreme Court of New York, afterwards affirmed by the Court of Appeals,'' the facts were these: The creditor, acting in his own behalf, and not under an agreement with, or as the agent of the debtor, procured a policy of iasui-ance to be issued upon the life of the latter, to an amount not exceeding the then existing 1 Conn. Mut. L. Ins. Co. r. Schaeler, 94 IT. S. 457; Dalby v. India & LondonL. Ass. Co , 15 C. B. 365: 28 E. L. & E. 312; Preston v. Neele, 12 Ch. Div. 760; Sides v. Knickerbocker L. Ins. Co., 16 Fed. Rep. 650; Scott V. Dickson, 108 Pa. St. 6. 2 Courtnay r. Wright, 2 GifE. 337; 6 Jur. (n. s.) 1283; 9 W. R. 153; MoTland v. Isaac, 20 Beav. 389; HoUand v. Smitli, 6 Esp. 11; Brnce v. Garden, 5 L. R. Ch. 32; 39 L. J. Ch. 334; 18 W. R. 384; Knox v. Turner, 6 L. R. Ch. 515; 39 L. J. Ch. 750; 23 L. T. R. 227; 18 W. R. 873; Preston e. Neele, 12 Ch. D. 760; 40 L. T. 303; 27 W. R. 642; Fieme e. Brade, 2 DeG. & J. 582; 27 L. J. Ch. 697; 4 Jur. (n. s.) 748. » Ferguson t). Mass. Mut. L. Ins. Co., 32 Hun, 306; 102 N. T. 647 596 MATURITY OF CONTRACT. § 397 • debt of the latter to him, and himself paid the premiums falling due thereon up to the time of the debtor's death. Prior to the death of the debtor the debt was partially or fully paid and the debtor had received a discharge in bank- ruptcy. In an action on the policy the defense was a total want of insurable interest prior to, and at, and after the issuing of the policy. The Supreme Court held the company liable and in the course of the opinion ^ said : " There being a debt at the time the policy is issued it is then valid. It contains no condition referring to the continuance of the indebtedness. But on the contrary, the policy evidences a flat and positive promise to pay a given sum at the termination of the life named. Death removes the last condition precedent except, perhaps, the delivery of proofs of the death. Then the holder becomes entitled to demand the sum named in the promise. Of course, in fire policies, the nature of the promise is different. That is a contract of indemnity against loss. The nature and extent of the loss must be shown, and only to the making good of the loss is the insurer bound in the very terms of his contract. No statute has gone so far as to declare that a life policy, valid in its inception because of a creditor's interest in the life of his debtor, shall be invalid the mo- ment the debt is paid.* Besides, from the nature of the contract, which is paid for by the creditor, he needs the payment of the policy to do complete justice to him. Sup- pose he has received, subsequent to payment of premiums for years, the debt due from his debtor, he has thus re- ceived 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 delivered 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 1 32 Hun, 306, supra. » Goodwin v. Mass. M. Life Ins. Co., 73 N. T. 497. 597 § 397 MATURITY OF CONTRACT. by payment or discharge in bankruptcy of the debt, the creditor would surely be the loser of the premioms paid, after the payment of his debt or the discharge in bankraptcy, and the insurance company would be the gainer. It would keep in its coffers moneys which it received as a consider- " ation for its ^vomise, which it had not kept. It would be the gainer by the incidental circumstance that the debtor had paid only what 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 meas- ured in fixing the amount of premiums demanded for the policy. That amount was ascertained by 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 business. We are, upon principle, prepared to agree with the English court in its conclusion in Dalby v. India & London L. Ins. Co.^ Indeed, we think the doctrine of that case has been accepted in this State, and that both upon principle and authority we should say that the insurer is bound to fulfill its contract, valid in its inception, not- withstanding the debtor upon whose life it runs may have paid his creditor or obtained a discharge in bankruptcy therefrom." * If a policy is effected by the creditor, either directly or indirectly, on the life of his debtor, and at the expense of the latter, under circumstances which show that the insurance was intended as a security or indemnity to the creditor, he is bound on payment of the debt to deliver up the policy.^ And so where the policy is payable to the creditor upon the death of the debtor the I 15 C. B. sisS; 28 E. I.. & E. 312. a The court cites Eawls c. Am. L. Ins. Co., 27 N. T. 282; 36 Barb. 357; St. John v. Am. Mut. L. Ins. Co., 13 N. T. 31, and note at p. 41; Olmstead v. Keyes, 85 N. Y. 593. » Conrtnay v. Wright, 2 Giff. 337; 6 Jur. (n. 8.) 1283; 8 L. T. 433; 9 W. B. 163; Holland o. Smith, 6 Esp. 11. 598 MATURITY OF C03STIIACT. § 398 legal representatives of the latter are entitled to the proceeds of the policy after payment of the debt and pre- miums, provided the premiums on such policy have been either paid by the debtor, or with his express or implied assent chai^d to him by the creditor.^ § 398. Liiens on Insurance Money. — The voluntary payment of premiums on a life insurance policy by a stranger confers upon the payor no interest in the policy.^ Where the mortgagor of a policy of life insurance, how- ever, became bankrupt, but continued until his death to pay the premiums, it was held that his legal personal represen- tatives were entitled to a lien on the policy money for the amount of the premiums so paid with interest.* In England it is more common than in this country for life insurance policies to be mortgaged for debts, iand numerous questioiis have there arisen as to liens on the insurance money. In Leslie v. French,* it was held that neither a stranger nor a part owner who pays the premiums on a policy of assur- ance, is entitled to any lien on the policy for those payments except under the following circumstances: 1. By a con- tract with the beneficial owner of • the policy." 2. By reason of the right of the trustees to an indemnity out of the trust property for money expended by them in its pre- servation.® 3. By subrogation to these rights of the trustees of some person who may have advanced money at JMorland v. Isaac, 20 Beav. 889; 24 L. J. Ch. 840; 1 Jur. (n. s.) 989; Bruce v. Garden, 8 L. B. Eq. 430; 20 L. T. 1002; 17 W. R. 990; ante, § 244. * Bnrridge o. Kowe, 1 T. & C. C. C. 183. * Shearman v. British Empire, etc., Ins. Co., 14 L. B. Kq. 4; 41 L. J. Ch. 466; 26 L.T. R. 570; 20 W. B. 620. < 83 Ch. D. 552; 62 L. J. Ch. 762: 48 L. T. 664; 31 W. R. 561. ' Aylwin v. Witty, 30 L. J. Ch. 860; 9 W. B. 720. * Clack V. Holland, 2 W. B. 402; 9 Beav. 262; Gill v. Downing, 17 L. B. Bq. 316; 30 L. T. 157; 22 W. R. 360; Todd v. MoorUouse, 23 W. R. 155; I.. R. 19 Eq. 69. 599 § 399 MATURITY OF COKTEACT. their request for the preservation of the property. 4. By reason of the right vested in mortgagees, or other per- sons having a charge upon the policy, to add to that charge any moneys which have been paid by them to preserve the property. Priorities of mortgagees and creditors are de- termined in cases involving the disposition of proceeds of life insurance policies as when other ohoses in action are in- volved. A verbal notice to an insurance company of an assignment of a policy is sufficient to give priority over subsequent assignees.^ Where several incumbrances or liens exist on several policies the securities will be marshalled if necessary to do justice.^ § 399. Creditors as Beneficiaries of Members of Bene- fit Societies. — The designation by a member of a benefit society of a person as his beneficiary, who is not of the class named in the charter or statutes authorizing the for- mation of such associations, is invalid, for the society has no power to provide for a fund for the benefit of any other persons than those mentioned in its charter or the statutes under which it exists.* But it has been said,° that, although the certificate of a m&tual beneficiary association contains the name of a creditor of the member as the beneficiary, contrary to the charter, yet if the certificate, or laws of the society, recognize the right to a substitution or change of ' See cases cited last, supra. » North British, etc., Co. v. Hallett, 7 Jnr. (K. 8.) 1263 ; 9 W. E. 880. For other cases involving notice to the company of assignment, see Al- letson V. Chichester, 10 L. E. C. P. 819; 44 L. J. C. P. 153; 32 L. T. 151; 28 W. E. 393; In re Hickey, 10 Ir. B. Eq. 117-C. A.; In re Cnrrie, 13 L. E. Eq. 188 ; 41 1<. J. Bk. 65 ; 20 W. E. 363 ; In re BosseU, 15 L. B. Eq. 26! 27Ii. T. 706; 21 W. E. 97. ' Ford V. Tynte, 41 L. J. Ch. 758; 27 L. T. 304; Heyman c. Dubois, 13 L. E. Eq. 158; 41 L. J. Ch. 224; 26 L. T. 658. * Ante, § 244. ' Bice V. New England Mnt. Aid Soc. (Mass.), 5 N. Eng. Bep. 816; 15 N. E. Eep. 624; Rindge v. Same, 15 N. East. Bep. 628. 600 MATURITY OF CONTRACT. § 400 beneficiary, and provide that if the member survives all the origiQal or substituted beneficiaries, the insurance shall be for the heirs of such member, the whole contract is not thereby rendered invalid, but the administrator of the de- ceased member may recover the benefit. The great object of beneficiary associations is not to do a life insurance busi- ness as such and for profit, but incidentally, and for the purpose of protecting the families and dependents of their members. The benevolent feature predominates, although the member pays a consideration for the benefit to be paid to his widow or orphans or dependents. Consequently these societies were never intended to protect or benefit creditors of the members. If the charter or statutes of the State limit the beneficiaries of the members to those of their families, or relatives, or dependents, a creditor of a mem- ber can never have any right of action against the society.^ If, though contrary to the laws of society, a certificate has been assigned to a creditor of the member and the society has paid over the amount to such creditor on the death of the member, he can only retain the amount of his debt, for security of which the assignment was made, together with the assessments paid by him on the certificate and interest, and must account to the personal representative of the de- ceased member for the surplus.^ § 400. Compliance with Terms of Policy as to Pay- ment Relieves Insurer. — Compliance with the terms of the contract in regard to payment of the insurance money will relieve the insurer from other claims upon the same policy. A case in point was decided in New Jersey.* There the policy provided that the sum therein named was 1 sailings «. Mass. Ben. Assn. (Mass.) 5 N. Eng. Bep. 718; 15 N. East. Eep. 566. ' Levy V. Taylor, 66 Tex. 652. » State (Metropolitan Life Ins. Co.) v. Schafer, 50 N. J. L. 72; » Cent. Bep. 662; 11 Atl. Bep. 154. 601 § 400 MATUEITT OF CCWSTRACT. to be paid as stated in condition five which was as follows: " The production by the company of this policy, and of a receipt for the sum assured, signed by any person famish- ing proof satisfactory to the company that he or she is the beneficiary, or an executor or administrator, husband or wife, or relative by blood, or connection by marriage of the assured, shall be conclusive evidence that such sum has been paid to and received by the person or persons law- fully entitled to the same, and that all claims and demands upon said company under this policy have been fully satis- fied." It was further stipulated that the policy and receipt book must be surrendered to the company before any pay- ment could be claimed. In the application the insured stated that he wanted the benefit paid to his son. A daughter of the insured, however, produced to the com- pany the policy and the premium receipt book, and the company paid her the money. In a suit by the son against the company to recover the amount the court held that the payment to the daughter relieved the company, because there was no contract or agreement to pay to the benefi- ciary named in the application, but to pay to the person or persons named in said condition five of the policy and in the manner therein specified. The company having paid in strict accordance with that condition was thereby discharged under its express terms from further liability. If the con- stitution of a benefit society provide that all claims against it shall be referred to the board of directors, " whose de- cision shall be final," no suit can be maintained on a death claim after it has been referred to the board of directors and payment thereof has been refused by it.* In the case cited, upon the facts as stated, the court said: " Waiving, therefore, all questions as to whether the board of directors would be under any more obligations to approve this claim ' Rood V. Railway Passenger, etc., M. B. Assn. (U. S. Cir. Ct. N. D. m.), 31 Fed. Rep. 62. 602 MATURITY OF CONTKACT. § 401 after a judgment had been rendered in favor of this plaint- iff than before, it is sufficient to say that it seems clear to me that the sole power of determining whether the associa- tion should or should not pay a claim, and an assessment be ordered to pay it, is Tested 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." * § 401. Conditions Precedent to Recovery to be Per- formed Alter lioss. — In contracts of insurance certain things are usually to be done by the assured after a loss before he can recover, such as the giving of notice or fur- nishing prescribed proofs of death. The doing of these acts is a condition precedent to recovery of the insurer. It is not necessary that these conditions precedent consist of things to be done by the assured, though he is required to procure performance, for the insurer may stipulate that be- fore he be held on his contract certain acts be done by third parties. An interesting case illustrative of this last statement, is that of Fuller v. B. & O. Employes' Relief Assn., decided by the Court of Appeals of Maryland.^ The defendant was a corporation, established by a railroad company, whose employes were required to become mem- bers of such corpoi-ation and to contribute to it certain amounts out of their wages Members who might be in- jured in the service of the company, whether through the negligence of the company or not. were entitled to a certain sum. The constitution of the association provided that in all cases where death is the result of accident, before the association should pay the amount due to the beneficiary of ^ It seems that on principle, if the claim had not been submitted to the board and an action had been brought, the court would have had juriBdiction, because au agreement to refer future disputes to arbitration, such as this contract was, is not binding. See post, § 450. » 9 Cent. Bep. 82; 10 Atl. Rep. 237. 603 § 402 MATUKITY OF CONTRACT. the member killed, the person legally entitled to recover damages should release the railroad company from all claim to damages. -The member of the association desig- nated his mother as beneficiary and was killed by an acci- dent on the road. He left a wife and child who were legally entitled to recover damages from the railroad company if the death resulted from the negligence of the latter. Such wife and child did not release the railroad company, but sued it and recovered damages by compromise. In an ac- tion brought by the beneficiary to recover the benefit promised in the certificate, the court held that the pro- visions of the constitution referred to were reasonable and binding upon the members and their beneficiaries and that the meaning was that no recovery could be had by any per- son against the association if the person legally entitled to damages made a claim for damages against the railroad company. § 402. ITo Liiabllity Civiliter at Common Law for the Destructiou of Human Life. — At common law a party is not liable civiliter for the destruction of human life, what- ever the consequences may be, or however clearly such a destruction may involve pecuniary damage. And although one may have contract relations with another he is not legally injured by an injury to such person which affects disastrously those relations. Where an insurer has been compelled to pay the insurance on the life of a person, whose death has been caused by the unlawful act of a third person, and where there is no privity of contract between the insurer and the wrong-doer, and no direct obligation of the latter to the former growing out of the relation of the wrong-doer to the insured, by contract or otherwise; thouf^h the loss of the insurer is due to the acts of the wrong-doer, yet as those acts affect the insurer only through his artifi- cial relation of contractor with the insured, the loss is a remote and an indirect consequence of the act of the wron^- 604 MATURITY OF CONTRACT. § 40o doer, and no action therefor can be maintained against him by the insurer. It follows that where the insured is killed by the negligence of a railroad company * or by the willful act of an individual ^ no action can be maintained against the wrong-doer by an insurance company which has paid the amount of a policy upon the life of the deceased. § 403. Conditions as to STotice and Proofs of Loss. — The contract, whether contained in the policy of the or- dinary life insurance company, or in the certificate, consti- tution and by-laws of a mutual benefit association, generally provides what shall be done by the assured upon the hap- pening of the contingency insured against. It is competent for the parties to stipulate for such conditions as they please in regard to notice and proofs of loss,^ although it has been held that a condition in a fire policy requiring a certificate or af&davit from the nearest magistrate, or a fire marshal, stating certain facts, is unreasonable and therefore void,* and if it is contracted that proofs of death ' ' satisfactory to the directors" be furnished, together with such infor- mation as they " shall think necessary to establish the claim" the directors cannot capriciously demand unreason- able proof.® The most usual requirements are that as soon as possible after the loss, notice thereof shall be given to the company and that proofs of death be afterwards fur- nished. The loss is generally made payable a certain period after receipt of these formal proofs of loss. Whatever these requirements are, as we shall see, they must be com- plied with or the company will not be liable. Nothing less 1 Ck>im. Mut. Life Ins. Co. o. New York 4 N. H. B. R, Co., 25 Conn. 266. » Insurance Co. v. Brame, 95 U. S. 754. a Fire Insurance Companies v. Felratli, 77 Ala. 194. * Universal Fire Ins. Co. i;. Block (Pa.), 1 Atl. Rep. 523; Shannon c. Hastings M. F. Ins. Co., 26 U. Can. C. P. 380; 2 Ont. App. 81. 4 Brannstein v. Accidental Death Ins. Co., 1 B. & S. 782; 8 Jur. (n. s.) 506; 31 L. J. Q. B. 17; 5 L. J. (n. s.) 550. 605 § 404 MATURITY OF CONTEACT. than an act of God will excuse performance,^ although in a fire case insanity was said to be an excuse,* and accident or mistake has been said to excuse.' But generally the condi- tions must be complied with, unless performance has been waived or the insurer is, by some act of his own, estopped from setting up the condition. If the policy is silent as to the effects of a failure to furnish proofs as required, while for violation of other conditions it expressly provides that the company shall be absolved from liability, such failure will not deprive insured of his rights.* There is a radical difference between the preliminary notice and the more formal proofs of loss. Notice will not be taken for proof, or supply its place, although the proofs of death may be deemed notice.' § 404. Substantial Compliance with Conditions Suffi- cient. — ^A substantial compliance with the terms of the contract in regard to notice and proofs of loss is all that is necessary. On this point the Supreme Court of North Carolina has well said: * " Insurance contracts are prepared by insurers who have at their command in their preparation the best legal talent and business capacity, and every precau- tion is taken for their protection. This is made necessary to prevent the frauds of bad men. But on the other hand, the insured are generally plain men, without counsel, or the capacity to understand the involved and complicated writ- ings which they are required to sign, and which in most cases probably they never read. What they understand is 1 Gamble v. Accident Asa. Co., 4 Irish R. C. L. 204; Fatton v. Em- ployer's, etc., Assn. Co., 20 L. B. (Ir.) 93; Forest City, etc., Ins. Co.T. School Directors, i Bradw. 145; Home Ins. Co. v. Linds^, 26 Ohio St. 348; Fire Ins. Companies v. Felrath, 77 Ala. 194. 2 Insurance Companies v. Boykin, 12 Wall. 433. 2 Hawkeo. Niagara, etc., Co., 23 Grant's Ch. Fp. Can. 139. * Aurora F., etc., Co. v. Eranich, 35 Mich. 289. ' O'Reilly «. Guardian Mut. L. Ins. Co., 60 N. Y. 169. 6 Willis 0. Germania Ins. Co., 79 N. C. 285. 606 MATURITY OF CONTRACT. § 405 that they pay the insiu'ers so much money, and if they are burnt out the insurers pay them so much. Where, there- fore, there has been good faith on the part of the insured and a substantial compliance with the contract on their part, the courts will require nothing more." Though these words were spoken of fire insurance contracts they apply to Ufe insurance cases as well, and the cases cited in the subse- quent sections practically sustain this view.^ § 405. Jfotice of Iioss. — If notice of loss is required to be given " forthwith," or " immediately," or " as soon as possible," these words are not to receive a literal inter- pretation, for to do so would often be rank injustice. It is enough under such a condition to give notice within a rea- sonable time. What is a reasonable time depends upon the oircomstances of each case and is usually a question of fact for tiie jury, or a mixed question of law and fact. If there is no dispute as to the facts the question is one of law for the court. ^ Thus notice within five days was held to be in time,* and, under peculiar circumstances, two months has been held not au unreasonable delay,* nor thirty days,' nor eleven weeks,* nor four months,' nor twenty-four days,* > Hartford F. Ins. Co. v. Smith, 3 Colo. 422. » Bennetts. Lycoming M. F. Ins. Co., 67 N. X. 274; Svran v. Itiverpool L. & G. Ins. Co., 52 Miss. 704; Brink v. Hanover F. Ins. Co., 80 N. T. 108; BenFranklin F. Ins. Co. v. Flynn, 98 Pa. St. G-T ; Provident L. Ins. Co. o. Banm, 29 Ind. 236; Railway Passengers' Ass. Co. v. BnrweU, 44 Ind. 460: Lyon V. Railway Passengers' Ass. Co., 46 la. 631; KimbaU v. How- ard F. Ins. Co., 8 Gray, 33; Inman v. Western F. Ins. Co., 12 Wend. 452: Kingsley «. N. Eag. M. F. Ins. Co., 8 Cush. 393; Erwin v. Spring- field, etc., Ins. Co., 24 Mo. App. 145. ' West Branch Ins. Co. v. HeUeustein, 40 Pa. St. 289; New Tork Cent. Ins. Co. V. National Protection Ins. Co., 14 N. T. 85; 20 Barb. 468; Schenck v. Mercer Co., etc, Ins. Co., 24 N. J. L. (4 Zab.) 447. • Cashau t;. Northwestern Ins. Co., 5 Biss. 476. ' Bennett ti. Lycoming, etc., Ins. Co., 67 X. Y. 274. • Brink v. Hanover F. Ins. Co., 80 X. Y. 108. 1 Palmer r. St. Paul, etc., Ins. Co., 44 Wis. 201. • Field V. Ins. Co., 6 Biss. 121. 607 § 405 JIATUBITY OF CONTRACT. nor a month. ^ But under different circumstances eleven days has been held unreasonable delay,* and eighteen days,* and a month,* and seven months, notwithstanding the com- pany, from other sources, had notice of the loss.' Six days' delay was held unreasonable where the agent lived in the same town and there were no extenuating circumstances. ' " It is evident," says the Supreme Court of Connecticut,' " from all the authorities that the words ' forthwith,' and * immediately ' are not to receive a strict literal construc- tion. Some time must necessarily be given. Some cases require more time, some less. To undertake to say as mat- ter of law what shall or shall not be regarded as reasonable time must necessarily be attended with great difficulty. Extreme cases either way may easily be determined. Be- tween them there is a wide belt of debatable grounds, and cases falling within it are governed so much by the peculiar circumstances of each case that it is much better to determine the matter as a question of fact. The court in the present case very properly submitted it to the jury and we canaot say that the verdict was wrong. The notico called for required time to collect the facts and prepare a statement, and required time for investigation both by the insured and by the magistrate. Whether the time taken was reasonable or unreasonable was a question peculiarly within the province of the jury to determine." The require- ment of notice is more common and necessary in fire policies than in those on lives, and most of the cases involving ques- tions of notice are upon lire contracts. In life policies the amount is usually payable within a certain time ' Parsons v. Queen Ins. Co., 43 Up. Can. Q. B. 271; 4 Ont. App. 103 s Traskc. State F. Ins. Co., 29 Pa. St. 198. ' Edwards v. Lycoming Ins. Co., 75 Pa. St. 378. ■• Scammon v. Germania Ins. Co., 101 HI. 621. ' McCaUc. Merchants' Ins. Co., 33 La. Ann. 142. * Railway Passengers' Ass. Co. v. Bnrwell, 44Ind. 460. ' Lockwood?). Middlesex Mnt. Ass. Co., 47 Conn. 553. 608 MATURITY OF CONTRACT. § 405 after '• due notice and proof of death " of the party in- sured, and the notice is not as essential an element. The custom generally is to informally notify the company of the death and receive from it blank forms to be fiUed up to serve for proof. In case of losses by fire there is greater need for timely notice, so that investigation may be made, for the loss may be partial and salvage result, but in life policies the death of the insured causes a total loss, which can be investigated as well later. Notice of loss need not be in writing unless the' oontract so requiriEis,' and acting on an oral notice is waiver of a written notice,^ and where two officers of the company went to the place where the loss occurred for the purpose of examining into it, it was held that notice was excused.* The notice must substantially conform to the conditions of the contract and be given by the person, to the officer and at the place and within the time required.* It may refer to affidavits filed with the company by the holder of another policy on the same life* and may be given to the agent for the company, unless otherwise required by the policy.* Although the notice is informal and contains much irrelevant mat- ter, it is sufficient if it sets forth in substance the facts required and to this end it will be liberally construed.^ If the 1 Killips r. Putnam F Ins. Co., 28 Wis. 472; Sexton ». Montgomery, etc., Ins. Co., 9 Barb. 191 * Edwards «. Travelers' Ins. Co., 20 Fed. Rep. 661 ; 22 Blatchf . 225 ; 122 U. S. 457. * Bonmage v. Mechanics' Ins. Co., 13 N.J. L. 110. * Cornell v. Milwaukee, etc., Ins. Co., 18 Wis. 387; Killips v. Putnam F. Ins. Co., 28 Wis. 472; Provident Ins. L. Co. v. Baum, 29 Ind. 236; Patrick v. Farmers' Ins. Co., 43 N. H. 621 ; Inland, etc., Co. v. StanfEner, .33 Pa. St. 397; Railway Pass., etc., o. BurweU, 44 Ind. 460; Sexton «. Montgomery, etc., Ins. Co., 9 Barb. 191. " Loomls V. Eagle L., etc., Ins. Co., 6 Gray, 396. « Commercial Union Ins. Co. o. State (Ind.), 15 N. East. Rep. 618; 13 West. Rep. 47. ' Barker v. Phoenix Ins. Co., 8 Johns. 307; Rix v. Mutual Ins. Co., 20 U. H. 198. 39 609 § 406 MATURITY OF CONTRACT. giving of a notice within a specified time is a condition prec- edent to recovery, it most be performed or the company is not liable. Thus it was said^ that the provisions of a policy issaed by an assurance company, making it a condition prec- edent to the right to recover that a notice, specifying the particulars of the accident should be delivered at the chief office of the company, in London, within seven days after its occurrence, applies to cases where, owing to the sudden character of the accident and its resulting in instantaneous death, there was nobody capable of giving the required no- tice, and the 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 the specified time. § 406. Proofs of Hioss, by whom Made. — The assured is the party by whom notice of loss must be given and proofs furnished.^ But a notice from the agent of the company upon information received by him is sufficient, unless the policy provides otherwise.' In cases of fire insurance contracts the agent of the insured has been allowed to furnish the proofs of loss required,* and this is especially so where the company has previously, in efiecting the insurance, recognized the agent as such.'' The real party in interest has been allowed to give the notice and 1 Gamble «. Accident Ass. Co., i Ir. B. C. L. 204. * Stimpson v. Monmoatb, etc., Ins. Co., 47 Me. 379; Spaoldingo. Ver- mont, etc., Ins. Co., 53 Vt. 156; Stanton v. Home F. Ins. Co., 21 Low. Can. Jut. 211 ; State Ins. Co. v. Maackens, 38 N. J. L. 564. 8 West Branch Ins. Co. v. HeUenstein, 40 Pa. St. 289; Sexton o. Montgomery, etc, Ins. Co., 9 Barb. 191. * GermanF. Ins. Co. v. Grunert, 112 lU. 68; Ayres v. Hartford F. Ins. Co., 17 la. 176; Farmers' Mut. Ins. Co. v. Graybill, 74 Pa. St. 17; Sims v. State Ins. Co., 47 Mo. 54; O'Connor o. Hartford Ins. Co., 31 Wis. 160; McGraw v. Germania F. Ins. Co., 54 Mich. 145; Gratiam v. Phoenix Ins. Co., 17 Hnn, 156; Findeisin v. Metropole F. Ins. Co., 57 Vt. 520. ^ Swan V. Liverpool L. & G. Ins. Co., 52 Miss. 704. 610 MATDKITY OF CONTRACT. § 406 make proofs of loss,* as the assignee of a life policy.* In general, it may be said that the conditions in insurance policies are to be construed liberally in favor of the assured and with greater strictness to the insurer because the con- tract is prepared by him.' And so, although the policy re- quired proofs and notice to be given by the assured and he was to give in a particular account and to submit to an ex- amination by the company before the loss should be paya- ble, an attaching creditor was allowed to furnish the preliminary evidence .by depositions.* In this case the court said : "It does not appear that the claimant is bound to comply with these requirements with technical strictness, either as to the time or manner of compliance." Notice and proofs* of loss may be furmshed by a testamentary guardian of minor beneficiaries, although he has not qual- ified as such according to the laws of the State of his dom- icile, but payment cannot be made of the amount of the policy to snch guardian, unless he has qualified as such ac- cording to law * In benefit societies the laws generally provide for the furnishing of proofs of loss by the benefi- ciary and the local lodge of which the deceased was a mem- ber. There is little difference between the requirements of life insurance companies and benefit societies in this re- spect, and the same principles govern in both classes of contracts.* 1 Watertown Ins. Co. v. Grover, 41 Mich. 131; Northwestern Ins. Co. V. Atkins, 3 Bnsh, 328; Graham v. Firemen's Ins. Co. (C. C. N. Y.), 9 Rep. 285. 2 Cannon v. Northwestern M. L. Ins. Co., 29 Hun, 470. » WUliso. Germania Ins. Co., 79 N. C. 285; Iiockwood t>. Middlesex Mnt. Ass. Co., 47 Conn. 553 ; ante, § 404. * Northwestern Ins. Co. v. Atkins, 3 Bush, 328. » Wuesthoff V. Germania L. Ins. Co. (N. Y.),;i4 N. East. Rep. 811; 10 Cent. Rep. 500. • Covenant Mnt. Ben. Assn. v. Spies, 114 lU. 463; Payne v. Mut. Re- lief Soc, 6 N. T. St. Rep. 365; 17 Abb. N. C. 53; Gellatly r. Minn Odd Fellows', etc., Soc, 27 Minn. 215; Kansas Prot. Union v. Whitt (Kan.>^ 14 Pac. Rep. 275; Lazensky t7. Supreme L. K. of H., 31 Fed. Rep. 592. 611 § 407 MATUEITY OF CONTKACT. § 407. Forms and Contents of Proofs. — It is not uiiual for life insurance policies, nor the by-laws of benefit soci- eties, to prescribe, either the form or contents of proofs of loss, although many contracts do contain definite re- quirements upon his subject. The condition is simply that the money be payable in a certain time after " due proofs of death," or " notice and proof of death." Upon receipt of notice of death insurance companies, and generally benefit societies, send to the assured blank forms for execution, consisting of certain questions to be answered and sworn to by the assured, the physician attending the deceased in his last illness, the clergyman and undertaker officiating at the funeral, and a friend of the deceased. In benefit societies the lodge also usually certifies that the member was in good standing at the time of his desease, that a certain person is the lawful beneficiary and that the claim is just. If a pol- icy of life insurance is payable in a certain time after " due notice and proof of the death," this means such reasonable proof as will give assurance that the event has happened and will satisfy the rules of evidence, and what is due proof cannot be determined arbitrarily by the company, as, for example, that a physician's certificate of the death be deemed an essential part cf the proof, although the com- pany has a usage to that effect. Such usage to be binding on the assured must be made known to him before issuance of the policy.^ The requirements of the policy must, how- ever, be substantially complied with, as, for example, where it was agreed in the policy that the company should not be liable for the loss, unless its surgeon-in-chief should be of the opinion that the party whose life was insured did not die from intemperance ; it was held that this opinion of the sur- geon-in-chief was a condition precedent to recovery and the assured must prove the decision of the surgeon as part of her 1 Taylor V. ^tna L. Ins. Co., 13 Gray, 434; O'Beilly v. GnaidUm Mut. L. Ins. Co., 60 X. Y. 169. 612 MATDKITY OF COXTKACT. § 407 case, or accoant for its absence.^ And so as to other certLfi- cates.^ The information is the main thing to be regarded in proofs of loss, the form is not important.^ Where only "due proof " is required it does not derogate from the suffic- iency of the proofs that they disclose facts of which the in- surer can avail himself as a defense to an action on the pol- icy,* nor are such facts disclosed a bar to the bringing of a suit.* Where two or more pohcies are issued by the same company upon the same life calling for the same kind of proofs, it ia enough, in the absence of a requirement to the contrary, to furnish proofs under one policy alone.* Nor is it necessary that the proofs of loss disclose the interest of the insured unless the policy so requires.^ A requirement sometimes found in life insurance policies is that among the documents and certificates making up the proofs of death shall be the affidavit of the physician who was the " attend- ing physician," in the last illness of the insured. A physi- cian, not engaged in practice, who is present as a friend and neighbor when a wounded man is brought to his own house, and who at the request of another neighbor, examines the wounds and administers an opiate is not necessarily such an attending physician. At most it is a question for the jury.' And so with the question as to which one of several was the attending physician within the meaning of the policy.' 1 Campbell v. Am. Popular L. Ins. Co., 1 McArthur, 246. ' Fire Ins. Companies r. Felrath, 77 Ala. 194. ' Irwin «. Springileld, etc., Ins. Co., 24 Mo. App. 146. • Ins. Co. V. Rodel, 95 TJ. S. 237: Conn. Mnt. L. Ins. Co. v. Siegel, 9 Bosh, 460; Conn. Mut. L. Ins. Co. r. Schwenk, 94 U. S. 593. s Ins. Co. V. Rodel, supra; Life Ins. Co. c. Francisco, 17 Wall. 672. • GinurdL. Ins. Co. v. Mut. L. Ins. Co.. 97 Pa. St. 15; DaMn v. Liver- pool, etc., Ins. Co., 13 Hun, 122; 77 N. Y. 600. ' Miller o. Eagle L. & H. Ins. Co., 2 E. D. Smith, 268. • Gibson r. Am. Mnt. L. Ins. Co., 37 N. Y. 6S0. ■ » Cnshman v. TTnited States L. Ins. Co., 70 N. Y. 72; Life Ins. Co. r. Francisco, 17 Wall. 672. f513 § 408 MATURITY OP CONTRACT. § 408. To Whom and at What Place Proofs Most be Famished. — If the policy requires that proofs of loss be furnished at a certain place, or to a designated official, this condition must be complied with. An allegation that the proofs were delivered to the company, satisfies a require- ment in the policy that they be given to the secretary.* If the contract provides that the insured, in case of loss, shall " deliver in " a particular account, etc., it is not sufficient to mail such account to the company, it must be shown that such account, etc., was received.* Delivery to an author- ized agent is sufficient.^ A condition that " any person other than the assured, who may have procured this insur- ance to be taken by the company, shall be deemed to be the agent of the assured named in this policy, and not of this company," is void as applied to a person, i.e., a local agent, upon whose counter -signature the validity of the policy, by its terms, is made to depend.* It is doubtful whether such a condition, under any circumstances, can be made available as a defense for the company after a loss has happened.^ An adjuster, sent to adjust the loss, has authority to receive proofs of loss,' or, if the company is foreign, proofs may be made to an agent.^ If the policy requires delivery at the office of the company, a delivery to any officer in charge of such office is sufficient,^ or to an agent of the insurer at the place of the loss by request of such agent.' Where the policy was conditioned that, in ' Excelsior Hat. Aid Assn. v. Biddle, 91 Ind. 84. ' Hodgkins v. Hontgomeiy, etc., Ins. Co., 31 Barb. 213. » North British, etc., Ins. Co. v. Cmtclifield, 108 Ind. 518. * Idem. ' Idem.; Van Schoick e. Niagara F. Ins. Ck>., 68 N. T. 431; Partridge v. Commercial F. Ins. Co., 17 Hon, 95; Indiana F. Ins. Co. v. Haitwell, 100 Ind. 566. * Merctiants', etc., Ins. Co. v. Vining, 67 6a. 661. ' ^tna Ins. Co. v. Sparks, 62 Gra. 187. ' Edgerly v. Farmers' Ins. Co., 48 la. 644. ' Badger v. Phoenix Ins. Co., 49 Wis. 396. 614 MATURITY or CONTRACT. § 409 case of loss, " immediate notice shall be given in writing to the company at Hartford, stating, etc., with full particulars of the accident and injury, of which direct and affirmative proof shall be furnished within seven months from the hap- pening of the accident," and failure to comply with this requirement was to avoid the policy, it was held that the condition requiring proofs to be furnished to the company, clearlj' does not require such proofs to be sent to the home office at Hartford.^ In a case in Illinois,* the policy re- quired that notice and proofs should be delivered to the company's secretary at the home office. They were served upon an agent in another place. The agent did not object to the service on the ground that it was not made at a proper place, but refused to receive the proofs on the ground that the policy had been cancelled. The court held that this refusal was a waiver of the right to insist upon service of the proofs at the home office. Proofs which were sufficient under the policy, as written, are good after it has been reformed so as to express the actual intention of the parties.* § 409. When Company Refuses to Furnish Blank Forms. — If the company, or society, when notified of the death and requested to furnish blank proofs of loss refuses to do so on the ground that the policy is void, or that it is not liable for the loss, such conduct will be held a waiver of proofs and they need not be supplied.* And where a by-law of the society provided that " proof of death shall be made on blanks furnished by the society, with the seal of the lodge to which the member belongs, or 1 Scheiderer v. Travelers' Ins. Co., 58 Wis. 13. » German Ins. Co. v. Ward, 90 HI. 550. s Maher v. Hibemia Ins. Co., 67 N. Y. 283. • Grattan v. Metropolitan L. Ins. Co., 80 N. Y. 281 ; Covenant Mut. Ben. Assn. v. Spies, 114 lU. 463; Payne v. Mut. ReUef Soc, 6 N. Y. St. B. 365; 17 Abb. N. C. 53. 615 § 411 MATDRITY OF CONTKACT. of the nearest lodge to the deceased," it was held that upon the refusal of the society, on proper application, to furnish the blanks mentioned, proofs of death might be made with- out such blanks and need not bear the lodge seal.^ K the delay in furnishing proofs of loss, or giving notice, is in any way attributable to the insurer, or caused by him, it wUl not be regarded.^ § 410. Effect of Failure to Famish Proofs. — If the effect of a failure to furnish proofs of loss in a reasonable time is not declared in the contract, they are in time if fur- nished before suit is brought.^ But where the policy pro- vides that the amount shall be payable after " due notice and proof thereof," no action can be maintained until after the notice is given and the required proof furnished ; for the liability of the insurer does not become absolute unless the preliminary proof, as required by the conditions of the policy, is obtained. If no proof is furnished the liability does not attach.* An insurance company cannot, under the Maine statute, be charged as a trustee for loss or damage under the policy by trustee process by the mortgagee of the property damaged until the preliminary proofs of loss re- quired by the policy have been furnished or waived.* § 411. Od Receipt of Proofs Insnrer Mast Point Oat Defects, if any Exist, Within a Reasonable Time. — When notice and proofs of loss are furnished to the insurer he must within a reasonable time point out the defects, if any, ' Gellatly v. Minnesota Odd-fellows Mnt. Ben. Soc, 27 Minn. 216. 2 Miller c. Hartford F. Ins. Co., 70 la. 704; 29 N. W. Eep. 411; Georgia, etc., Ins. Co. v. Einnier, 28 Gratt. 88; Little v. Phoenix Ins. Co., 123 Mass. 380; Aurora, etc., Ins. Co. v. Eranich, 36 Mich. 289; Rokes v. Amazon Ids. Co., 51 Md. 612; O'Brien o. Ohio Ins. Co., 62 Mich. 131; Craighton v. Agricoltoral Ins. Co., 39 Hnn, 319. » Fanners' Ins. Co. v. Frick, 2 Cin. L. Bui. 16. * DaTis 9. Davis, 49 Me. 282; Jackson v. Southern, etc., Ins. Co., 36 Ga. 429; Iieadbetter v. £tna Ins. Co., 13 Me. 265. » Nickerson v. Nickerson (Me.), 6 N. Eng. Eep. 798; 12 Atl. Eep. 880. 616 MATURITY OF CONTRACT. § 411 which they contain. Aa says the Supreme Court of jNIichi- gan: ^ " The law is well settled that when any defects are found in the proofs of loss, capable of being remedied if intelligibly pointed out, a failure by the underwriters to make known the difficulty, or call for the information omitted, when that is the infirmity, within a reasonable time, is deemed to be a waiver, and tiie rule is believed to be without exception, that the insurer must object season- ably, if at all. He must act in good faith, openly, frankly and distinctly, and make his objections known within a reasonable time." * What is a reasonable time in which Hie insurer must point out defects in proofs of loss is a ques- tion of fact for the jury. On this point the Supreme Court of Alabama well says: ' " What is a reasonable time, be- ing a mixed question of law and fact, must always be sub- mitted to the jury, under appropriate instructions. It must depend largely on attendant circumstances. In this case, the distance from the chief agency, the greater distance from the head office, reasonable time to learn all that could be known of the true facts, and to formulate an opinion upon them — each and all of these must be taken into ac- count in prosecuting the inquiry of reasonable time. Like other rules of law, it rests on reason. Insurance companies must not lure their patrons into false security, by which 1 Mercantile Ins. Co. «. Holthaus, 43 Mich. 423. » Phoenix Ins. Co. e. Tucker, 92 111. 64; American L. Ins. Co. v. Ma- hone, 56 Miss. 180; State Ins. Co. v. Maackens, 38 N. J. L. 564; Titos v. Glens Falls Ins. Co., 81 N. Y. 410; Timayenis v. Union Mut. L. Ins. Co., 21 Fed. Rep. 223; 22Blatcht. 405; Continental L. Ins. Co. v. Rogers (111.), 10 N. E. Rep. 242; 8 West Rep. 88; Findeisen v. Metropoie F. Ins. Co., 67 Vt. 520; Girard L. Ins. Co. v. Mnt. L. Ins. Co., 97 Pa. St. 15; McMasters v. Westchester, etc., Ins. Co., 25 Wend. 379; Boynton v. Clinton, etc.. Ins. Co., 16 Barb. 254; Blake v. Exchange, etc., Ins. Co., 12 Gray, 265; Bartlett v. Union Mnt. Ins. Co., 46 Me 500; Lycoming F. Ins. Co. V. Dnnmore, 75 HI. 14. The foregoing are some only of the cases supporting the principle which is so universally admitted that citations are almost useless. » Fire Ins. Companies v. Felrath, 77 Ala. 201. 617 § 412 MATURlXr OF CONTKACT. the latter may lose the means and opportunity of remedy- ing defects in their preliminary proof — must not lead them astray by giving notice of one objection, and then relying upon another; nor by a general refusal to pay, retain in reserve, for a surprise on the trial, some defect in the proof, which, perchance, if known might have been remedied. The law expects and exacts candor and good faith, and pun- ishes with adverse presumptions those who fail to observe these cardinal virtues." ^ Objections to the proofs are too late if not made until the trial. ^ § 412. Objections to Proofs mast be Specific: Insurer most not Mislead Assnred. — Objections by the insurer to the proofs of loss must be specific. It is too general to say that they are deficient both in form and substance,"* or that they do not correspond to printed instructions ; * nor can the company remain silent for a long period and then complain in general terms,' nor is it sufficient to merely say that the proofs are "irregular, informal and insufficient."* De- fects not specifically pointed out are waived.' Nor must the company mislead the insured by propositions of com- promise on other grounds of alleged violation of conditions,* or by prolonging negotiations until the time to furnish proofs 1 Mercantile Ins. Ck>. v. Holthaos, 43 Mich. 423. 2 Swan V. Liverpool, etc., Ins. Co., 52 Miss. 704; Breckinridge v. American Central Ins. Co., 87 Mo. 62; Organ v. Hibemia F. Ins. Co., 3 Mo. App. 576; Continental L. Ins. Co. o. Sogers, 119 111. 474: 10 N. B. Bep. 242; 8 West. Kep. 88; Canada Landed Credit Co. v. Canada Agricaltnral Ins. Co., 17 Grant's Ch. (Up. Can.; 418. But see Mason c. Andes Ins. Co., 25 Up. Can. C. P. 37; McManus v. Mtaa. Ins. Co., 6 Allen (N. B.), 3X4. » Myers u. CouncU BluSs In*. Co. (la ), 33 N. W. Bep. 453. < Universal F. Ins. Co. v. Block (Pa.), 1 Atl. Rep. 523. ' Imperial F. Ins. Co. v. Murray, 73 Pa. St. 13. • Madsdenc. Phoenix Ins. Co., 1 S. C. 24. ' Boynton v. Clinton & Essex Mnt. Ins. Co., 16 Barb. 254; Hartford Protection F. Ins. Co. v. Harmer, 2 Ohio St. 452; Peoria, etc., Ins. Co. v. Lewis, 18 HI. 553; Phoenix Ins. v. Tucker, 92 m. 64. Bat sec Daniels v. Equitable F. Ins. Co., 50 Conn. 551. 8 Ben. Franklin F. Ins. Co. «. Flynn, 98 Pa. St. 627. 618 MATDRirr OF CONTEACT. § 413 has expired.^ If payment is withheld on other grounds than defects in the proofs, such defects will not be re- garded and cannot be of avail to the insurer.* In receiving proofs, however, the insurer may place his disclaimer upon any ground he pleases and still, by express declaration to that effect, reserve all objections to a recovery in any form and to the proofs as furnished.* And if no word or act has been said or done by the insurer to mislead insured or throw him off his guard, mere silence is not enough to sus- tain the inference of waiver ; * and this is particularly the case if proofs have been received at a later time than is pro- vided, for, under such circumstances, the insurer is not precluded from his objections by retaining the proofs and keeping sUent." The company will not be precluded from insisting upon defects in the proofs if at the time of recep- tion it indicated to rasored the intention to hold him strictly to tiie terms of the policy in this respect .° § 413. Where Proofs are Unnecessary. — No proofs of loss are necessary if the company disclaims all liability un- 1 Little V. Phoenix Ins. Co., 123 Mass. 380. ' Xtaa, Ins. Co. v. Shryer, 85 Ind. 362 : Atlantic Ins. Co. v. Manning, 3 Colo. 22t; Hartford F. Ins. Co. v. Smith, W. 422; WilllamsbTirg City, etc., Ins. Co. v. Cary, 83 III. 453; Phoenix Ins. Co. v. Tucker, 92 Id. 64; Continental Ins. Co. v. Bandolph, 2 Ky. L. Bep. 313; Planters' Ins. Co. o. Ensle, 52 Md. 468; Butterworth v. Western Ass. Co., 132 Mass. 489; Am. L. Ins. Co. v. Mahone, 56 Miss. 180; Brink v. Hanover F. Ins. Co., SON. T. 108; Field c. Ins. Co., 6 Biss. 121; Miller v. Alliance, etc., Ins. Co., 19 Blatch. 308; 7 Fed. Eep. 649; Bang c.Farmvllle, etc., Ins. Co., 1 Hughes, 290; Merchants' Ins. Co. v. Dwyer, 1 Posey, 441; Walsh u. Vermont, etc., Ins. Co., 54 Vt. 351. See post, § 435, et seq. ' Citizens' F. Ins. Co. p. Doll, 35 Md. 89. * Muellero. Sonthside F. Ins. Co., 87 Pa. St. 399; St. Amand v. La. Cie d' Assurance, etc., 9 Queb. L. K. 162. " Knickerbocker Ins. Co. v. Gould, 80 111. 388; Bell e. Lycoming F Ins. Co., 19 Hun, 238; McDermott t». Lycoming F. Ins. Co., 12 Jone,> i Sp. 821. 6 Gauche e. London, etc., Ins. Co., 4 Woods, 102; 10 Fed. Kep. 347. 619 § 414 MATURITY OF CONTRACT. der the contract.* Probably no rule of insurance is better settled than this, and the reason rests on the old maxims, Lex non proBcipit inutilia, quia inutilis labor stuUus, and Lex neminem cogit ad vana seu inutilia peragenda. And so, when the insurer declines to pay the loss, and assigns a rea- son other than want of proofs, as, for example, the non- payment of an assessment, then proofs of loss are excused. This rule also has never been denied.^ Many other acts and circumstances will be construed to amount to a waiver of proofs of loss or of any defects which might, under other conditions, be taken advantage of. This subject wiU be further treated of in the succeeding chapter.' § 414. Good Standing. — The majority of certificates issued by benefit societies contain the condition that the beneficiary shall only be entitled to recover if the deceased at the time of his death was in ' ' good standing ' ' in the order. It therefore often becomes a question of importance 1 Marston v. Mass. Mut. L. Ins. Co., 59 N. H. 92; King v. Hekla F. Ins. Co., 68 Wis. 608 ; Knickerbocker L. Ins. Co. v. Pendleton, 112 U. S. 696; Caxson v. German Ins. Co., 62 la. 433; Fhcenix Ins. Co. v. Adams, 8 Ky. L. Kep. 532; Aurora F., etc., Ins. Co. v. Kranich, 36 Mich. 289; O'Brien v. Ohio Ins. Co., 52 Mich. 131; Planters' Ins. Co. v. Comfort, 50 Miss. 662; German-Am. Ins. Co. ». Davidson, 67 Ga. 11; Baile «. St. Joseph, etc., Ins. Co., 73 Mo. 371; Kantrener B.Penn. M. L. Ins. Co., 6 Mo. App. 581; Penn. F. Ins. Co. «. Dougherty, 102 Pa. St. 568; Crawford Co., etc., Ins. Co. v. Cochran, 88 Pa. St. 230; Sheppard ». Peabody Ins. Co., 21 W. Va. 368; Kans. Prot. Union v. Whitt (Kan.), 14 Pac. Rep. 276; Lazensky v. Sup. Lodge K. of H., 31 Fed. Bep. 592. 2 Carson v. German Ins. Co., 62 la. 433; Daul v. Firemen's Ins. Co., 35 La. Ann. 98; Planters' Ins. Co. v. Comfort, 50 Miss. 662; .Stna Ins. Co. V. Shryer, 86 Ind. 362; Merchants', etc., Ins. Co. t;. Vining, 68 Ga. 197; Goodwin v. Mass. Mut. Ins. Co., 73 N. Y. 480; Marston u. Mass. L. Ins. Co., 59 N. H. 92; Prentice v. Knickerbocker L. Ins. Co., 77 N. Y. 483; Grange MUl Co. v. Western Ass. Co., 118 111. 396; Boyd v. Cedar Kapidslns. Co. 70 la. 325; 30 N. W. Rep. 585; Girard L. Ins. Co. «. Mut. L. Ins. Co., 97 Pa. St. 15; West Rockingham M. F. Ins. Co. v. Sheets, 26 Gratt. 854; Thwing v. Great Western Ins. Ca, 111 Mass. 93; Tayloe ». Merchants' Ins. Co., 9 How. 390. 3 Post, §§ 435, 436. 620 MATURITir or CONTRACT. § 414 to determine what is meaut by this expression. The cer- tificate issued to the member is evidence of his good stand- ing and in the absence of proof to the contrary this condition will be presumed to continue. If by reason of his conduct or failure to comply with the regulations or requirements of the society, the member has lost his good standing, the society must show this fact, for status once fixed is supposed to continue until the contrary is shown, — the fact is one of defense and is one peculiarly within its knowledge.^ It was held in a case in JUinois,'^ that the words, good stand- ing, are to be construed in reference to the language of the application and the preceding language of the certificate, and in that particular instance they meant that the member must not only have a good reputation but be of good con- duct, — i. e. free from a violation of his pledge of total abstinence. " Good standing in a society," says the court, *' not only implies that a party is a member of the society, but that he has a good reputation therein." And in this case the court, upon construing the contract, held that there was a pledge upon the part of the member that he would not use any intoxicating liquor; that the violation of this pledge was cause for expulsion or suspension as a member, and it, — not the expulsion or suspension, but the violation of the pledge, — was also a cause for forfeiture of rights and benefits under the certificate. Consequently, if before his death the member had violated his pledge, al- though he had not been tried or expelled for the offense, he was not in good standing.' A member of an order at the time of his death in arrears for dues and assessments, the time for the collection of which had fully expired, is by rea- 1 Supreme I-odge K. of H. c. Johnson, 78 Ind. 110; Mnlroy v. Sup. Lodge Knights of Honor, 28 Mo. App. 463; Zieglero. Mut. AldSoc, IMc- Gloin (la.), 284. ' Eoyal Telnplars of Temperance v. Curd, 111 111. 289. ' See also Hogins v. Sup. Council Champions of the Eed Cross (Cal ) , 18 Pac. Eep. 125. 621 § 414 MATUEIXy OF CONTKACT. son of these facts not in good standing'within the meaning of a benefit certificate requiring the member to be in good standing in the order at the time of his death to entitle the beneficiary to recover.* Where dues were payable in ad- vance at the first meeting of the lodge in the quarter it was held that the member was in good standing and not in ar- rears although he had not paid his dues for the quarter, he dying August 12th and the quarter commencing on the first of the same month, if no intervening meeting of the lodge was shown.^ If the laws of the order provide that members in arrears shall be suspended, the standing of such members is not affected, until such suspension is regularly made.* In a case in the Federal court of Illinois, where the certi- cate contained a condition that the amount should only be paid if the member at the time of his death was in good standing in his lodge, the court .-aid:* " I think this case might be wholly disposed of on the ground that this being a voluntary society, in which the standing of its members and the mode of suspending and reinstating them in their membership was regulated and provided for by the laws of the society, if the records and proceedings of the body show that a member is not in good standing, he must be bound by these records and the action of his society in that regard, especially when he has exercised his right of ap- peal, and the action of which he complains has been affirmed by the appellate tribunal. The society, by its own laws, being made the judge of the standing of its members, such members are bound by its action on that subject, and I feel very clear that the courts ought not to entertain revisionary supervision over the action of such bodies when dealing with their members, except, perhaps, when fraud is charged and proven." But this declaration must be taken with 1 McMurry v. Supreme Lodge K. of H., 20 Fed. Eep. 107., a Mills V. Eebstock, 29 Minn. 380. » District Grand Lodge v. Cohn, 20 Bradw. 335. * Hawksliaw v. Supreme Lodge K. of H., 29 Fed. Rep. 773. 622 MATURITY OF CONTKACT. § 414 some degree of allowance, for it is to be modified by the further statement that these proceedings of the subordinate lodge must have been regular and the lodge must have ac- quiied jurisdiction. The rule is more correctly stated by Judge Wheeler, of the United States court for the Southern District of New York, in a suit against the same order and involving to a great extent the ssame question.^ After re- ferring to certain cases cited by counseP the judge says : " These cases show clearly that the decisions of such asso- ciations, according to their own laws, rules, and regulations, which all assent to who become members, are conclusive as to membership and standing, except as they are reviewable within the order under the laws of the order. But none of the cases go so far as to hold that a mere record of a sen- tence of suspension, without any proceedings whatever to found it upon and not according to the laws of the order is conclusive anywhere. Section two of article twelve of tHc' laws of this order requires that charges preferred against a member shall be read in open lodge, and a copy of them be furnished to him under the seal of the lodge, and that he be cited to appear to answer them. In Karcher v. Supreme Lodf'e,^ the charge was non-payment of an assessment, and the copy furnished was not under the seal of the lodge. The validity of the judgment of suspension was questioned on the t^round that the copy was not sufficient, but it was held that such irregularity would not invalidate the judgment, but not intimated that it would be good without any notice . " * 1 Lazensky c. Supreme Lodge, K. of H., 31 Fed. Eep. 592. ' Karcher ». Supreme Lodge K. of H., 137 Mass. 368; Anacosta Tribe c. Murbach, 13 Md. 91; Osceola Tribe v. Schmidt, 57 Md. 98; Burt v. Grand Lodge, 44 Mich. 208; Woolsey b. Odd -fellows, 61 la. 492; 16 N. W. Bep. 576; Harrington v. Workingmen's Assn., 70 Ga. 340. » 137 Mass. 368. * See Mulroy v. Supreme Lodge Knights of Honor, 28 Mo. App. 463. 623 CHAPTER Xra. "WAIVEB AND ESTOPPEL. § 420. Definitions of Waiver and of Estoppel. 421. In Insurance Law Waiver and Estoppel mnch the Same Thing. 422. Waiver may be Parol though Beqnired by the Contract to be in Writing. 423. Waiver mnst be Intentional and with Knowledge. 424. No Estoppel When Contract is Illegal, nor When Parties made a Mutual Mistake, nor When Party has not been Misled: Estoppel When Contract is Executed. 425. Estoppel from Bepresentations. 426. Waiver or Estoppel by Acts of Officers or Agents. 427. Estoppel in Matters Belattng to Application. 428. The Same Subject: Knowledge, Mistakes, or Fraud of Agents. 429. Estoppel in Matters Relating to the Policy or Certificate. 4290. When Performance of Condition is Impossible. 430. Waiver or Estoppel in Matters Belating to Assignment or Change of Beneficiary. 431 . Waiver or Estoppel by Beceipt of Premium or Assessments. 432. The Same Subject: Notices of Premium or Assessments. 438. The Same Subject: General Rule. 434. Greneral Rules of the Law of Waiver or Estoppel Apply to Insur- ance Contracts. 435. Calling for Proofs of Loss Waives Breach of Conditions. 436. Other Acts of Insurer in Regard to Proofs of Loss Amounting to Waiver of Particular Requirements. 437. When Insurer is Precluded from Certain Defenses. § 420. Deflnitionsof Waiver and of Estoppel. — Waiver tias been defined to be " the relinquishment or refusal to accept of aright."' Estoppel is: "The preclusion of a person from asserting a fact, by previous conduct incon- sistent therewith, on his own part or the part of those under whom he claims, or by an adjudication upon his rights 1 Bouvler Law Die, tit. Waiver. 624 WAIVER AND ESTOPPEL. § 420 which he cannot be allowed to call in question."^ "The law of estoppel," says Bigelow,* " is the law of rights ac- quired or fixed in one of three ways, namely, by record, by deed, or by facts in pais." In insurance cases, if an estop- pel exists it is generally by matter in pais, though a com- pany may become estopped both by deed and by record. Technically an estoppel in pais arises from the acts, ad- missions or conduct of a person by which he designedly induces another to alter his position injuriously to himself. The approved rule laid, down by the authorities* is that to constitute an estoppel by conduct, or equitable estoppel, the following elements must be present: 1. There must have been a false representation or concealment of material facts. 2. The representation must have been made with knowl- edge of the facts. 3. The party to whom it was made must have been ignorant of the truth of the matter. 4. It must have been made with the intention that the other party would act upon it. 5. The other party must have been induced to act upon it. Equitable estoppel, or by conduct, is said to have its foundation in fraud, consid- ered in its most general sense ; because a man cannot be prevented by his conduct from asserting a previous right, unless the assertion would be tantamount to a fraud upon the person who had subsequently acquired the right.* The doctrine originated in chancery, but is now adopted in courts of law.* After treating of estoppels arising out of representations, including therein cases of silence amount- ing to a representation by way of admission or negation of rights, Mr. Bigelow, in his treatise on estoppel, says:* *' There are other estoppels, so called, growing out of con- ' BoBviep Xaw Die, tit. Estoppel, ' Estoppel, p. 1. » Bigelow on Estoppel, p. 25. •• Bispham Equity, § 282. * Note to Dutchess of Kingston's Case, 2 Smith Lead. Cas. 711. « p. 633. 40 625 § 421 WAIVER AND ESTOPPEL. duct of the same nature, that cannot be considered cases of representation at all in any legitimate sense of that term. Such are cases in which, by the course of conduct of one party to a contract, entitled to the performance of certain terms or conditions thereof, the other party has been led to believe, as a man of average intelligence, that such per- formance wiU not be required, until it has become too late to perform, or until to insist upon performance, would work material injustice. These commonly are cases of waiver; and it appears to be little, if anything, more than giving them another name to call them estoppels. The estoppel, unlike that by misrepresentation, does not rest upon ignorance of the facts by the party entitled to the benefit of it. BVequent illustrations of the estoppel in question are to be found in actions upon insurance policies, where the conduct of the underwriter has been such as reasonably to lead the insured to believe, until too late, that a requirement of the policy, as, e.g., in regard to the proofs of loss or the prompt payment of the premium or of a premium note will not be required. If the assured as a sensible man has really been misled, it would be a fraud upon him to insist upon the term or condition forborne." § 421. In Insurance Law Waiver and Estoppel much the Same Thing. — It will be seen from an examination of the cases cited in this chapter, as well as from the preceding sections, that if the words, waiver and estoppel, as used in insurance cases, are not synonymous terms, the line of separation between them is so shadowy and uncertain that it cannot always be distinguished. In his admirable work on Insurance Mr. May says: ^ "The terms, ' estoppel' and ' waiver,' though not technically identical, are so nearly allied, and, as applied in the law of insurance, so like in the consequences which follow their successful application,. 1 § 505. 626 WAIVER AlfD ESTOPl'EL. § 422 that they are used indiscriminatel j by the courts . " The Su- preme C!ourt of Pennsylvania has remarked ' that a waiver of a breach of conditions " never occurs unless intended, or where the act relied on ought in equity to estop the party from denying it." And Bigelow says: ^ "Another kind of estoppel by conduct may arise, to wit, by a party to a contract or transaction inducing the other to act in the be- lief that the former will waive ce];tain x-ights he might otherwise maintain against the latter. This estoppel does not consist in misrepresentation by the party to be estopped, nor does it require that the opposite party should be ignor- ant of the facts. Waiver by an underwriter of the terms of an insurance contract is an example." We shall not, therefore, in the succeeding pages attempt to distinguish between cases of waiver and those of estoppel, because if attempted it could not always be done. It will be readily seen that the same facts may be construed both to amount to the waiver of a right, otherwise enforceable, and to estop the party froth asserting such right as a defense. What name to give to the legal effect of a certain condition of facts often depends upon the point of view from which such facts are regarded. § 422. Waiver may be Parol Though Required by the Contract to be iu Writing. — A parol waiver of a condi- tion in a policy is good, notwithstanding a provision in such policy I hat nothing but a written agreement, signed by an oflScer of the company shall have that effect. Such a requirement may be waived by parol, or acts in pais. ^ 1 Diehl V. Adams, etc., Ins Co., 58 Pa. St. 443. ' Bigelow on Estoppel, p. 27. » Gans r. St. Paul, etc., Ins. Co., 43 Wis 108; Farmers', etc., Ins. Co. e. Gargett, 42 Mich. 293; Blake v. Exchange M. Ins. Co., 12 Gray, 265; Van Allen r. Farmers', etc., Ins. Co., 4 Hun, 413; Lamberton ». Conn. F. Ins. Co. (Minn.), 39 S. W. Rep. 76; Smith v. Commercial Union Ins. Co., 33 Up. Can. Q. B. 69. 627 § 424 w'llVER AND ESTOPPEL. § 423. Waiver Mnst be Intentional and with Knowl- edge. — A waiver of a stipulation in an agreement must, to be effectual,not only be made intentionally, but with knowl- edge of the circumstances. This is the rule where there is a direct and precise agreement to waive the stipulation - A' fortiori is this the rule when there is no agreement, either verbal or m writing, to waive the stipulation, but where it is sought to deduce a waiver from the conduct of the party. Thus, where a written agreement exists and one of the parties sets up an agreement of a different nature, alleging conduct on the other side amounting to a substitution of this arrangement for a written agreements he must clearly show, not only his own understanding, but that the other party had the same understanding.^ And the New York Court of Appeals in approving this rule says : ' " Ordinarily a party should not be held to have waived a forfeiture, in the absence of facts constituting an estoppel, unless tie intended to waive it, nor can he be held to have waived it unless he knew of the facts constituting after the forfeiture." ^ Consequently acts of either party done after the time the other party claims to have been misled, are no ground of estoppel * Intimations of legal conclusions, either by acts or words, constitute no foundation for an estoppel.* § 424. No Estoppel when Contract Is Illegal, nor when Parties made a Mutual Mistake, Ifor when Party has not been Misled: Estoppel when Contract is Execated. — A contract of insurance entered into in violation of law or 1 Bennecke v. Insurance Co., 105 U. S. 359 ; Darnley v. London, Chat- ham & Dover R. Co., L. K. 2 H. L. 43. 2 Robertson V. Metropolitan!.. Ins. Co., 88 N. Y. 541. ' Girard, etc., Ins. Co. «. Hebard, 95 Pa. St. 45; Diehl o. Adams, etc., Ins. Co., 68 Pa. St. 443; Hazard v. Franklin Mut. F. Ins. Co., 7 R. I. 429; Ryan v. Springfield, etc., Ins. Co., 46 Wis. 671. * Bebrensv. Germania F Ins. Co., 64 la. 19. « Packard v. Conn. Mut. L. Ins. Co., 9 Mo. App. 469; Brewster t. Striker, 2 N. T. 19. 628 WAIVKR AND ESTOPPEL. § 424 public policy is simply void and neither party to it is estop- ped from showing the fact. " Otherwise the public law and policy would be at the mercy of individual interest and caprice."^ There is no estoppel where both parties with equal opportunities or knowledge on the subject made a mistake,^ nor when the insured has not acted upon the sup- posed waiver* nor when the insured has not been prejudiced * for, says the Supreme Court of Michigan: * " The waiver that is spoken of in these cases is another term for an estop- pel. It can never arise by implication alone, except from some conduct which induces action in reliance upon it, to an extent that renders it a fraud to recede from what the party has been induced to expect. It is only enforced to prevent fraud." If an association assumes a name which implies a corporate body, exercises corporate powers, per- forms acts and contracts as a corporation, it will be estop- ped to deny that it is a corporation and liable as such.^ In an action on a certificate, purporting to be signed br the oflBcers of the corporation and sealed with it^ seal, certify- ing that the member to whom the certificate was issued ' ' is a member of this order in " a certain lodge, the corpora- tion is estopped by its own deed from showing that at the time of the issue of the certificate the lodge was not fully organized.' The court says: " Conceding the organization 1 In re Comstock, 3 Sawy 228; Spare r. Home Ins. Co., 8 Sawy. 618; 15 Fed. Rep. 707. » Johnson v. Conn. F. Ins. Co. (Ky. Ct. App.), S Ky. L. Rep. 460; 2 S. W. Bep. 151. 3 Andrews c. iEtna L. Ins. Co., 85 X. T. 335; Henry v. GUlUand, 103 Ind. 177. * Jewetto. Home Ins. Co., 29 la. 562; Security Ins. Co. v. Fay, 22 Mich. 467. « Security liis. Co. v. Fay, supra. * Barbaro r. Occidental Grove, etc, 4 Mo. App. 429; United States Bx. Co. V. Bedbnry, 34 HI. 466; Stoddard v. Onondaga Ann. Conference, 12 Barb. 573. ' Independent Order of Mutual Aid v. Paine, 122 lU. 625; 11 West. Bep. 701; 14 N. East. Rep. 42. 629 § 425 WAIVER AND ESTOPPEL. of the Rising Star Lodge to have been defective as claimed, it would have afforded no answer to the action. It had received its charter, and, as a body, was acting under it with the knowledge and sanction of the defendant. This was sufficient to bind the latter." § 425. Estoppel from Representations. — An estoppel from the representations of a party can seldom arise, ex- cept where the representation relates to a matter of fact, — to a present or past state of things. If the representation relate to some thing to be afterwards brought into exist- ence, it will amount only to a declaration of intention or of opinion, liable to modification or abandonment upon a change of circumstances of which neither party can have any certain knowledge. The only case in which a repre- sentation as to the future can be held to operate as an es- toppel is where it relates to an intended abandonment of an existing right, and is made to influence others, and by which they have been induced to act. An estoppel cannot arise from a promise as to future action with respect to a right to be acquired upon an agreement not yet made with party complaining. The doctrine of estoppel is applied with respect to representations of a party, to prevent their operating as a fraud upon one who has been led to rely upon them. They would have that effect, if a party who, by his statements as to matters of fact, or as to his intended abandonment of existing rights, had designedly induced another to change his conduct or alter his condition in reli- ance upon them, could be permitted to deny the truth of his statements, or enforce his rights against his declared in- tention of abandonment. But the doctrine has no place for application when the statement relates to rights depend- ing upon contracts yet to be made, to which the person complaining is to be a party. He has it in his power in such cases to guard in advance against any consequences of a subsequent change of intention and conduct by the per- 630 WAIVEK AND ESTOPPEL. § 426 son with whom he is dealing. For compliance with arrange- ments respecting future transactions parties must provide by stipulations in their agreements when reduced to writing.^ § 426. W^aiver or Estoppel by Acts of Officers or Agents. — A party always has the option to waive a condi- tion or stipulation made in his own favor. Insurance com- panies therefore have this right, but ^s they are corporations they must act, if at all, through agents. The principal man- aging officers in charge of the business of a company, and acting within the apparent scope of their employment, may waive or dispense with any of the conditions of a policy of insurance, except, perhaps, as we shall see, in the case of a mutual company the powers of whose officers are said to be more limited. The knowledge of the president of a company is that of the company,' and where the secre- tary of an insurance company fills out an application, the company is presumed to waive any statements of fact that are not inserted in the application and not called for.^ The The assistant secretary has been held to have authority to waive forfeitures.* And generally the acts of the presi- dent and secretary of a company, performed in its office and relating to its business, whether they are written or verbal, whether they make a contract, waive a forfeiture or give consent, bind the company,* otherwise there would be no safely for any person dealing with the company, for it could avoid the acts of its officers or not as it would be to its advantf^e. The company can also, of course, waive » Insmance Co. v. Mowiy, 96 TJ. S. 644; Waynsboro Ins. Co. o. Con- over, 98 Pa. St. 384; White v. Aahton, 51 N. T. 380; White v. Walker, 31 m. 422; Faxton v. Faxon, 28 Mich. 159. ' Pomeroy v. Bocfcy Mountain, ete., Ins. Co., 9 Colo. 29* » Tiefenthal c. Citizens', etc, Ins. Co., 63 Mich. 306. ' Piedmont, etc., Ins. Co. r. McLean, 31 Gratt. 51T. » Dilleber v. Knickerbocker Life Ins. Co., 76 N. Y. 667: 7 Daly, 640; Cotton States Ins. Co. v. Edwards, 74 Ga. 220. 631 § 426 WAIVEE AND ESTOPPEL. any conditions through its duly authorized agent or a gen- eral agent. The question has frequently arisen as to the authority of insurance agents to waive for, or estop, their principals. If the agent is one with limited authority and not authorized, or expressly forbidden, to waive any conditions of the contract, and these instructions and lim- itations are communicated to the person dealing with, such agent, or if by ordinary prudence he could have informed himself of them, the company will not be bound by the agent's acts.^ If the agent willfully attempts a fraud upon the com- pany, as by writing down false answers in the application, and the person dealing with him connives at the fraud either from negligence or design, the company will not be bound.* But if no limitation upon the power of the agent be brought to the notice of the assured, who acts in good faith, and he is deceived by the acts of the agent acting within the appa^ rent scope of his employment, the company must respond, for it is at fault in holding out such agent as its representa- tive * And generally it may be said that the fraud or mis- take of a knavish or blundering agent, done within the scope of his powers, will not enable the company to avoid a policy to the injury of assured, who innocently became a party to it, though a stipulation in the policy provides that such agent shall be deemed the agent of the insured and the ^ New York Life Ins. Co. v. Fletcher, 117 U. S. 519; Ins. Co. v. Norton, 96 XJ. S. 240; Ryan v. World Mut. Life Ins. Co., 41 Conn. 168; Merserau V. PhoenLs Mnt. Lite Ins. Co., 66 N. Y. 274; Greene o. Lycoming F, Ins. Co., 91 Pa. 387; Piedmont v. Arlington Life Ins. Co. v. Young, 58 Ala. 476; Marvin v. Universal Life Ins. Co., 85 N. Y. 278. * Ryan v. World Life Ins. Co., 41 Conn. 168; I/ewis o. Phoenix Mnt. L. Ins. Co., 39 Conn. 100; ante, § 152, et seq. ' Insurance Co. v. Wilkenson, 13 WaU. 222; Guardian Mut. L. Ins. Co. V. Hogan, 80 Dl. 35; New York L. Ins. Co. v. McGowan, 18 Kan. 300; Sullivan v. Phoenix Ins. Co., 34 Kan. 170; Kausal v. Minnesota, etc., Ins. Co., 31 Mum. 17; Planters' Ins. Co. v. Myers, 55 Miss. 479; Amer- ican Ii. Ins. Co. V. Mahone, 56 Id. 180; Rohrback v. Mtna Ins Co., 62 N. Y..613; MUler o. Mutual Ben. L. Ins. Co., 31 la. 216; Knox v, Lycoming F. Ins. Co., 50 Wis. 671. 632 WAIVER AND ESTOPPEL. § 426 statements of the application, signed by the latter, are made warranties by the policy .^ The stipulations of a pol- icy, limiting the power of agents to waive its conditions, are not always conclusive upon either the assured or the company, because it is the privilege of the company to change or dispense with the conditions made for its benefit ; it may enlarge the powers of its agents or ratify their acts. The question has been said to be not what power the agent actually had, but what power did the company hold him out to the public as possessing.* If the policy contain no limitations upon the power of the agent to waive any of its conditions, the company will be bound by his acts in that regard.^ If the agent mislead an ignorant person as to ma- terial matters the company cannot profit by the wrong, but wiU be estopped.* A general agent has power, unless specially restricted by limitations and instructions commu- nicated to parties dealing with him, to waive or dispense with any of the conditions of the policy. And the com- pany is liable for all acts done by him in the course of his employment. He may waive conditions either in writing or verbally.* A foreign insurance company is chargeable with the knowledge of its general agent concerning the cus- toms of his office and those under him." Members of mu- 1 Eilenbeiger v. Protective Ins. Co., 89 Pa. St. 464; Smith o. Farmers', etc., Ins. Co., 89 Pa. St. 287; N. Y. Life Ins. Co. o. McGowan, 18 Kan. 300; ante, § 152, et seq.; post, § 428. ' Electric L. Ins. Co. t>. Fahrenkrug, 68 111. 463; Willcuts d. N. W. Mut. L. Ins. Co., 81 Ind. 300. » Silverberg v. Phoenix Ins. Co., 67 Cal. 36. * Bivara v. Queen's Ins. Co., 62 Miss. 720. » Steen v. Niagara F. Ins. Co., 89 N. T. 315; N. Y. Life Ins. Co. v. Mc- Gowan, 18 Kan. 300; Turner «. Phcenix Ins. Co., 55 Mich. 236; Equitable L. Ass. Soc. D. Brobst, 13 Xeb. 526; Mass. Mat. L. Ins. Co. u. Eshel- man, 30 Ohio St. 647; Goldwatero. Liverpool, etc., Ins. Co., 39 Hun, 176; Campbell v. National L. Ins. Co., 24 Up. Can. C. P. 133; Home L. Ins. Co. O.Pierce, 65 111. 426; O'Brien c. Union Mut. L. Ins., 22 Fed. Kep. 586. • Phoenix Mut. L. Ins. v. Hinesley, 75 Ind. 1; Liverpool, etc., Ins. Co. V. Ende, 65 Tex. 118; Sentell v. Oswego, etc., Ins. Co., 16 Hun, 516. 633 § 426 WAIVKE AND ESTOPPEL. tual companies are chargeable with knowledge of their laws and consequently of all the limitations and restrictions upon the powers of the officers and agents contained in such laws. The requirements of the charter of a mutual organ- ization cannot be waived.' The Supreme Court of Indiana has said : ^ " Whenever the charter of an insurance com- pany requires that any act shall be done, and prescribes the mode in which such act shall be done, and declares that if the act be not done in the manner prescribed, the contract* or policy of insurance, shall be void, the company cannot waive the performance of such act in the prescribed mode; for performance of any condition of the contract fixed by law, cannot be waived. This has been repeatedly declared to be the law in cases involving the question of double in- surance. Thus, in Couch v. City Fire Ins. Co.,* where the charter of the insurance company provided that ' if there shall be any other insurance upon the whole or any part of the property insured by any policy issued by said com- pany during the whole or any part of the time specified in such policy, then every such policy shall be void, unless such double insurance shall exist by consent of said com- pany, indorsed upon the policy under the hand of the sec- retary,' it was held by the Supreme Court of Connecticut that the insurance company could not waive the perform- ance of the act required by such provision of its charter, in the mode prescribed, and that its consent to double insur- ance could only be proved by indorsement thereof upon the policy under the haad of the secretary." * A distinction ' Brewer v. Chelsea M. F. Ins. Co., 14 Gray, 203; Hale u. Mechanics' Ins. Co., 6 Gray, 169; Baxter v. Chelsea M. Ins. Co., 1 Allen, 294; Miller V. Hillsborough F. Assn., 42 N. J. Eq. 460 ; Manufacturers', etc., Ins. Co. », Gent, 13 Bradw. 308 ; Borgraefe v. Supreme Lodge, etc., 22 Mo. App. 127; Harvey v. La Cie, etc., Bamsay's App. Cas. (Low. Can.) 378. 2 Leonard v. American Ins. Co., 97 Ind. 299. 3 38 Conn. 181. < Hackney B. Alleghany Mut. Ins. Co., 4 Pa. St. 185; Evans v. Tri- mountain Ins. Co., 9 AUen, 329; ante, § 147. 634 WAIVER AND ESTOPPEL. § 426 is, however, made between matters touching the substance or essence of the contract ani those which relate to certain formalities to be observed after a loss, such as the prelim- inary proofs to be furnished by the insured. As was said by the Supreme Court of Massachusetts: "^ "It is well set- tled that, although the by-laws of a mutual fire insurance company provide that in case of loss the assured shall furnish certain preliminary proofs to the officers to entitle him to recover for the loss, yet the officers may in any particular case waive this stipulatysn ; that such waiver may be either express or by implication ; and that it may be implied from the fact that in refusing to pay the loss they neglect to to state their objections to the preliminary proofs, and place their refusal on other grounds.* A Waiver of this sort is unlike a waiver of such provisions of the by-laws as relate to the substance of the contract. The officers have no power to dispense with these.* In the latter case * the distinction between these two classes of by-laws is pointed out. It is said that stipulations as to the preliminary proofs do not touch the substance or essence of the contract ; but relate only to the form or mode in which the liability of the company shall be ascertained and proved. Besides, such preliminary proof must necessarily be submitted to the officers of the corporation who must pass on its suffi- ciency, and it therefore comes within the scope of their authority to say whether proof of the loss is sufficient." * A distinction has been made between the requirements con- tained in the charter and the same provisions in the by- laws, in regard to the authority of the officers of the J Priest V. Citizens' Mut, F. Ins. Co., 3 Allen, 602. * Underbill v. Agawam Ins. Co., 6 Cush. 440. » Halec. Mechanics' Ins. Co., 6 Gray, 169; 66 Am. Dec. 410; Brewer V. Chelsea Ins. Co., 14 Gray, 203. * Brewerc. Chelsea Ins. Co., supra. * Behler o. German, etc., Ins. Co., 68 Ind. 354; Westchester, etc., Ins. Co. B. Earle, 33 Mich. 150. 635 § 427 WAIVKE AND ESTOPPEL. company to waive compliance therewith. For example^ if membership of an associatiqn was by its charter limited to persons not over a certain age, such a provision could not be waived by the officers of the association; but, where the charter contained no restrictions as to the age of the members but the by-laws did, then the officers could waive the requirement.^ The tendency of modern authority is to make no distinction between mutual and stock insurance companies in regard to their liability for the acts of their agents.^ The general rule to be deduced from the preced- ing authorities is that, except when the company is mutual, it may, either by its own acts or those of its duly author- ized agents, waive any of the provisions of the policy in- serted therein for its benefit; or it may, by its own acts or those of its duly authorized agents, become estopped from claiming the benefit of such provisions. But agents can only waive compliance by the assured with the terms of the contract when they act within the apparent scope of their employment. If any limitations, or restrictions, upon the authority of agents are communicated to the persons deal- ing with them, acts of such agents not within such limita- tions will not bind their principals.* ^ 427 . Estoppel in Matters Relating to the Applica- tion. — Although the answers of the insured in the applica- tion for insurance are untrue, or incomplete, and this fact might, under the teims of the contract, avoid it, the com- pany may by its conduct, or the acts of its duly authorized atrents, be held to have waived its right, or be estopped from setting up such right, to have the policy declared void for misrepresentation or breach of warranty. The insur- ance company, if the assured was not in fault, cannot take 1 Morrison ». ■Wlscousin Odd-fellows', etc., Co., 59 Wis. 169; ante, § 147. But see Mulrey v. Shawmut, etc., Ins. Co., 4 Allen, 116. ' Eaosal v. Minnesota, etc., Assn., 31 Minn. 17 ; aiiCe, § 1S6. * See ante, § 1S2, et seq. 636 WAIVER AOT) ESTOPPEL. § 427 advantage of a mistake in the application when committed by its own agent, nor on the other hand can the beneficiar- ies, suing on the policy, claim that a false statement was made by the assured through his own mistake, inadvertence or ignorance, when such statement is declared by the policy to be a warranfy,^ nor if the application is made part of the contract can one who is able to read, and has warranted his answers to questions in such application to be true, be heard in the absence of fraud to say that he was ignorant of its contents.* If the answer to a question in the appli- cation assumes knowledge of the fact, the assured and those claiming under him wiU be precluded from alleging want of knowledge on the part of the assured as an excuse for not answering correctly.^ If the company chooses to issue a policy without an application, or with an application defec- tive but true as far as it goes, it will be held to have waived the want of the application or its defects.* After a loss has b^en adjusted the company is estopped to set up in de- fense to the claim, breaches of warranties or stipulations in the original policy.* The insurer is estopped from showing that its examining physician was incompetent, or that the recitals of his certificate are false, unless the physician was influenced by fraudulent representations or concealment of material facts.* And where the company is responsible for a misstatement in the application it is precluded from set- ting up such error to avoid the policy.' For example, an 1 Ala. Gold L. Ins. Co. v. Gamer, 77 Ala. 210. s Cnthbertson c. North Carolina Home Ins. Co. (JS. C), 2 S. E. Kep. L'58. » Hartford L. & A. Ins. Co. e. Gray, 91 lU. 159. ' Blake v. Ex(Aan«:e M. Ins. Co., 12 Gray, 265; Hall v. People's Ins. Co., 6 Gray, 185; Liberty Hall Assn. v. Honsatonic M. F. Ins. Co., 7 Gray, 261. 5 Godchaux c. Merchants' M. Ins. Co., 34 La. Ann. 235. • Holloman v. Insurance Co., 1 Woods, 674. « ' Grattan c. Metropolitan L. Ins. Co., 92 N. Y. 274; 28 Hun, 430; Maher . Hibemia Ins. Co., 67 N. Y. 283; Lueders c. Hartford L. & A. Ins. Co., t MeC. 149; 12 Fed Rep. 465. 637 § 427 WAIVBE AND ESTOPPEL. applicant gave a true answer to a question by the medical examiner, but the latter wrote a different and untruthful answer in his report, but the aipplicant did not see the an- swer as written in the report and was ignorant of the fact that it differed from that given by him. Under these cir- cumstances it was held that the company, not the insured, was responsible for the falsehood. ^ If, upon the face of the application, a question appears to be not answered at all, or to be imperfectly answered, and the insurers issue a policy without further inquiry, they waive the want or imperfection in the answer and render the omission to answer more fully immaterial.^ And if, when the insurance company issues the policy, it knows that certain answers in the application are falsely answered, it waives the right to object by such issue. ^ But where the manager of an insurance company, having doubts as to the propriety of accepting a certain risk, caused the local agent of the company to make other in- quiries concerning applicant's habits, and receiving satisfac- tory reports issued the policy, it was held * that the company was not estopped from relying upon the written application and showing that it contained willfully false statements, the effect of which, under the stipulations of the contract, avoided it. To what extent the company is bound to avail itself of means of knowledge of the falsity of answers in an application is a somewhat unsettled question. Ina Wiscon- ^ Grattan v. Metropolitaa L. Ins. Co., supra; ante, § 223. 2 Phoenix Ins. Co. v. Baddin, 120 U. S. 183; Conn. Ins. Co. v. Luchs, 108 U. S. 498; Hallu. People's Ins. Co., 6 Gray, 185; Liberty Hall Assn. v. Housatonlc M. P. Ins. Co., 7 Gray, 261; Carson p. Jersey City Ins Co., 43 N. J, L. 300; 39 Am. Bep. 584; 44 N. J. L. 210; Armenia Ins. Co. o. Paul, 91 Pa. St. 520; 36 Am. Bep. 676; Lebanon M. Ins. Co. v. Kepler, 106 Pa. St. 28; LoriUard P. Ins. Co. v. McCuIloch, 21 Ohio St. 173; Am. LUe Ins. Co. V. Mahone, 56 Miss. 180; ante, § 204. » Schwarzbach ». Protective Union, 25 W. Va. 622; Gray v. National Ben. Assn., Ill Ind. 531; 11 N. Bast. Bep. 477; 9 West. Bep. 289. * Enssell V. Canada L. Ass. Co., 32 Up. Can. C. P. 256; 8 Ont. App. 716. 638 WAIVEK AND ESTOPPEL. § 428 sin case ^ the Supreme Court of that State held that where an insurance company has in its possession abundant evidence of a misrepresentation in an application for insur- ance, it is its duty to examine such evidence, and it is charge- able with notice of the misrepresentation. And, if after such notice, it fails to cancel the insurance and continues to make assessments upon the assured, it waives the right to cancel. But the Supreme Court of Michigan has held ^ that when a second application is presented to the company it is not obliged to take notice of the answers to the same ques- tions in the first application, which would have shown that the answers in the second application were untrue. If the company, or society, with knowledge that certain answers in the application are false, receives premiums or assess- ments upon the policy, it will be estopped from setting up as a defense in an action on the policy, or certiticate, the fals- ity of such answers. All of what we have said in this sec- tion has general application and applies to benefit socie- ties as well as insurance companies, as far as the facts may be similar.* The reasons for the rule are so obvious as to not need recital; to hold any other way would be to con- nive at fraud and make bad faith immaterial. § 428. The Same Subject : Knowledge, 3Iistabes or Fraud of Agents. — It has frequently been a question to what extent the knowledge, misconduct or errors of agents of insurance companies in matters of applications are bind- 1 Morrison v. Wisconsin Odd-fellows' JIut. L. Ins. Co., 59 Wis. 162. » Brown B. Metropolitan L. Ins. Co., 8 West. Rep. 775; 32 N. W. Rep. 610. ' Ballr. Granite State M. Aid Assn. (X. H.), 9 Atl. Rep. 103 ; 4 N. Eng. Rep. 289; Appleton c. Insurance Co., 59 N. H. 541; Insurance. Co. b. WoUE, 95 U. S. 326; Morrison v. Wisconsin Odd-feUows' M. L. I. Co., 69 Wis. 162; Schwarzbach v. OMo VaUey Prot. Union, 25 W. Va. 622; Wat- son «. Centennial M. L. Assn., 21 Fed. Rep. 698; Excelsior M..Aid Assn. V. Riddle, 91 Ind. 84; Masonic M. Aid Assu. v. Beck, 77 Ind. 203; 40 Am. Bep. 295; Hoffmau v. Sup. Council Am. Leg. of Honor, 35 Fed. 252; 639 § 428 WAIVEK AND ESTOPPEL. ing upon their principals so as to amount to a waiver or estoppel in regard to certain requirements. The subject is complicated by the usual stipulations in the policies that the agents receiving the applications are to be regarded as representatives of the insured and not of the company. This matter has already been considered generally,* and it may now again be said that whenever knowledge of the agent's limited authority is brought home to the applicant he must act accordingly, or, if a copy of the application is annexed to the policy and contains untrue answers, written down so by the agent, although answered correctly by the applicant, then the company is not liable for such miscon- duct, and there can be no waiver nor estoppel.^ Apphcants for insurance policies are bound to good faith and must communicate fully and without reserve all information called for, or that is deemed material by the company. The company consummates the contract on the basis of the responses to the questions. If the agent has fuUer infor- mation, not written in the answers, it would be his duty to communicate it to his principal. The applicant must be understood as making his overture to the company on the faith of the disclosures in his application. If the company, without fault on the part of the assured, is misled by the agent, who takes the preparation of the paper into his own hand and makes mistakes or omissions, the company is es- topped, except as stated in the last paragraph, for the fault is not with the insured.' The New York Court of Appeals 1 Ante, § 426. s N. Y. Life Ins. Co. v. Fletcher, 117 U. S. 519; Byanc. World Mnt. L, Ins. Co., 41 Conn. 168. s American Ins. Co. v. Mahone, 66 Miss 180; Planters' Ins. Co. v Myers, 55 Miss. 479: Mass. Mat. L. Ins. Co. v. Robinson, 98 111. 324; Germania F. Ins. Co. v McKee, 94 111. 494; McCall v. Phoenix M. L. Ins. Co., 9 W. Va. 237; Langdonv. UnionMut. L. Ins. Co., 14 Fed. Eep. 272; Woodbury Savings Bank v. Charter Oak Ins. Co., 31 Conn. 517; Coolidge 0. Charter OakL. Ins. Co., 1 Mo. App. 109; Taylors. Mnt. Ben. L. Ins. Co., 10 Hun, 52; McArthur v. Globe Mnt. L. Ins. Co., 14 Hnn, 348; 640 WAIVEK AND ESTOPPEL. § 429 broadly lays down the same principle that " if the state- ments in the application, relied npon as breaches of war- ranty, are inserted by the agent for the insurers without any collusion or fraad upon the part of the insured, the insurer is estopped from setting up their error or falsity as breach of warranty," and says the doctrine is well settled.* § 429. Estoppel in Matters Kelatin? to the Policy or Certificate. — If the application does not attempt to set forth all the provisions which the policy to be issued must contain, and the agent, with or without authority, repre. sents that the policy will contain certain stipulations, which are not unlawful, then the policy must contain them or the insured is not bound to accept it. But in such case it is the duty of the insured, when he reeeiyes the policy, to promptly examine it, and if it does not contain the stipulations agreed upon to at once notify the company of such fact and of his refusal to aocepi. the policy, or he will be deemed to have waived his right,^ and so a party setting up an equitable es- toppel is himself bound to the exercise of good faith. He must also act promptly, an estoppel muse be mutual or reciprocal and unless the party relying on the estoppel shows that he acted on the same he will be held to have waived it.* If a person applying for a ten y«ar paid-up Western Ass. Co. o. Sector, 9 Ky l,. Bep. 3; Stone v. Hawkeye Ins. Co., 'SS la. 737; Eggleston a. ConncU BlafEs Ins. Co. 65 la. 308; Donnelly v. Ins. Co., 70 la. 693, 28 N. W. Bep. 607, Continental Ins. Co. v. Pierce {Kan.), 18 Pac. Bep. 291. ' Mowiy V. Bosendale. 74 N. Y. 363; Baker t. Home L. Ins. Co., 64 N. T. 648; Maher v. Hibemia Ins. Co., 67 Id. 283; Bowley v. Empire Ins. Co.. 36 N. Y. 650, 3 Keyes, 567; 4 Abb. Ct. App. D. 131; Eggleston v. ConncU Blnfls, etc., Ins. Co., 66 la. 308; Insurance Co. v. Wilkinson, 13 Wall 222; Insurance Co. v. Mabone, 21 Id. 152; Miller v. Mat. Ben. L. Ins. Co., 31 la. 216; Snllivan r. Phoenix Ins. Co., 34 Kan. 170. 2 American las. Co. v. Neiberger 74 Mo. 167; New York !•. Ins. Co. V. Fletcher, 117 U S. 619: Mound City L. Ins. Co. v. Twining, 19 Kan. 349. Bnt see Palmer v. Hartford. Ins. Co.. 54 Conn. 488. s Andrews v. ^tna 1.. Ins. Co., 85 N. Y. 334; 92 N. Y. 596. 41 641 § 429 WAIVER AND ESTOPPKL. policy receives one marked in plain terms " ordinary life policy " and pays piemiums upon it for ten years, he will be held to have waived his rights to require one conforming to his application and equity will not relieve him from the consequences of his want of diligence. ^ Or if, for example, a policy is marked, participating, and after demand for a paid-up policy, the agent, instead of informing the assured that his policy, was non-participating and hence not, under the rules of the company, entitled to be exchanged for a paid-up policy, or that demand must be made in writing ,jtold him that it was all right and he would attend to it, the com- pany may be estopped from claiming that the demand was not rightly made, and it has been so held.' If the company, without consent of the wife, substitutes for a policy, pay- able to the wife of insured, one payable to the husband, which policy is afterwards with the consent of the company transferred to a third person, the company is estopped from denying the legal, independent existence of such policy, it having been responsible for its issue and instrumental in inducing innocent third parties to give value for it.* In the case first cited * the Court said: " This policy belonged originally, and notwithstanding the change, continued to belong to Mrs. Pilcher. As originally executed, her title thereto appeared affirmatively on the face of the instrument. The company, by unlawful collusion with Pilcher, sup- pressed this original instrument, and issued a new one in lieu thereof, in which it falsely declared that the policy was Pilcher's own, and, therefore, assignable by him. It did this, as the evidence shows, for the express purpose of ena- 1 Massey v. Cotton States L. Ins. Co., 70 Ga. 794; Zallee ti. Conn. Mut. li. Ins. Co., 12 Mo. App. 111. 2 Piedmont, etc., Ins. Co. v. Young, 58 Ala. 476. s PUcher v. New York t. Ins. Co., 33 La. Ann. 322, citing Lemon v. Phoenix M. L. Ins. Co., 38 Conn. 294; Chapin v. Fellowes, 36 Conn. 132f Dutton B. Willner, 62 N. Y. 312. * Pilcher v. N. Y. Life Ins. Co., supra. 642 WAIVER AND ESTOPPEL. § 429 bling him, under cover of this apparent title, to raise money on the policy. It accepted his assignment thereof and the subsequent reassignment by his first assignees to a per- fectly ignorant and innocent holder, who acted upon the faith of title as represented by the company itself in the body of the instrument and as recognized by the company in all its acts. It collected from this assignee the premiums down to the death of the insured. We accuse the company of no intentional wrong ; but, for the purposes of this case, it occupies the same position as if it were a deliberate and intentional wrong-doer. It was a party to unlawful acts, and, as every one is presumed to know the law, it is pre- sumed to know that they were unlawful. By its affirma- tive declaration in the body of the instrument that the policy was Pilcher's while, as is presumed, knowing and unlawfully concealing the fact that it was really his wife's; by its acceptance and recognition of Pilcher's assignment and of the re-assignment to the bank ; and by the reception from the latter of the premiums, it distinctly authorized and induced the bank to accept and act upon, as true, the state of facts thus represented by itself; and it is now conclu- sively estopped from denying the truth thereof, and from escaping the performance of those obligations which re- sult in law therefrom.^ If the company has for a long period of time, as for example eight years, recognized a person as the beneficiary of a policy, it wiU be held to be estopped to deny his right to sue in his own name as such beneficiary.* And so, where a mutual benefit association voluntarily enters into a contract of insurance upon the life of a member for the benefit of one not expressly author- ized or prohibited from becoming a beneficiary, which is not contrary to public policy, and receives all the premiums 1 See Barry o. Bnme, 71 N. T. 261 ; Landram v. Knowles, 22 N. J. Eq. 594; Manhattan L. Ins. Co. v. Smith, 44 Ohio St. 156. ' Continental L. Ins. Co. v. Hamilton, 41 Oliio St. 274. 643 § 439a wllVER AND ESTOPPEL. thereon, it will not be allowed to defeat a recovery on the policy, at the suit of the beneficiary, by claiming that the contract, on the part of the association, is ultra vires.^ § 429a. When Performance of Condition is Impossi- ble. — If, at the time of issuance of a policy, the company knew that the performance of a condition subsequent there- in contained was impossible, or that such condition was inconsistent with the facts, the company will be deemed to have waived performance of such condition, and is estopped from claiming the benefit of it, if the assured has been guilty of no fault. As, for example, if payment of a pre- mium be required to be made at a time when it cannot possibly be made. The following case is an illustration: The assured on June 5th, 1867, applied to the agent in San Francisco of the defendant, a New York life insurance company, for a policy, on his life and paid the first quar- terly premium, for which payment he received a receipt of that date specifying that if the application should be ac- cepted the policy should be in effect from that day, if the application was not accepted the money should be returned. The company issued the policy, but dated it April 5th, in- stead of June 6th, and made the quarterly premiums paya- ble at its ofiice in New York on the sixth days of April, July, October and January in each year. If the premiums were not paid at these times the policy was to be void. At that time from twenty -three to thirty days were required for the passage from New York to San Francisco. The policy was received by the agent in San Francisco, August 2, 1867, who notified the assured to call and get the policy. The assured was mortally wounded August 21, 1867, and died a few days later, never having paid the quarterly pre- mium due July 6, 1867. In an action on the policy this non-payment was set up by the company as a defense. > Bloomington Mut. Ben. Assn. v. Blue, 120 111. 121. 644 WAIVER AND ESTOPPEL. § 430 It was held by the court that, as the company must have known when the policy was issued that the quarterly pre- mium of July 6th could not, by the very nature of things, be paid at its office, or elsewhere, according to the condi- tion of the contract, the performance of the condition was waived. The further , reason for holding a waiver was the supposed intention of the company.^ § 430. Waiver or Estoppel in Matters Relating to As- signment or Change of Beneficiary. — Although the as- signor of a policy allege in a statement to the company that certain assignments of such policy were obtained from him by fraud, he is not thereby estopped from showing that the assignments were void because of his incapacity, by reason of drunkenness, to make the same.^ An assisnee under an assignment of life policies, such assignment being abso- lute in its terms, is not so far bound to disclose the nature of his claims to a subsequent assignee of the assured, the latter assignment being made subject to the Hen of the first assignee for moneys advanced by him on said policies, or otherwise on the account of the assignor, that he will be estopped, in a suit for the distribution of the proceeds of such policies, from showing consideration in support of the first assignment to the full amount of the policies.^ It has been held* that a benefit society can waive the formalities J Young V. Mnt. L. Ins. Co. (U. S. Cir. Ct. Cal.), 2 Ins. L. J. 289. On appeal to the Supreme Court of the United States this judgment was reversed on the ground that the company by not issuing the policy accord- ing to the t*rms of the application, the times of payment of premium being changed, there was no contract, the minds of the contracting par- ties never having met: Ins. Co. v. Young, 23 Wall. 85. See to the point stated in the test, Bivara v. Queen's Ins. Co., 62 Miss. 720; Andes Ins. Co. V. Shipman, 77 m. 189. * Bursinger v. Bank of Watertown, 67 Wis. 76. « DifEenbach v. Vogeler, 61 Md. 370. * Manning v. Ancient Order of United Workmen (Ky.),5 S. W.Bep. 385; Splawn c. Chew, 60 Tex. 532; ante, § 308. 645 § 430 WAIVER AND ESTOPPEL. prescribed by its laws for the change of beneficiary, so as to make such change valid. For example, in a case in Kentucky ^ the laws of the society required the member, if he desired to change the beneficiary in his certificate, to surrender such certificate, with a form on the back of it filled up and signed by him and attested by the recorder of the lodge under its seal, and pay a certain fee. The mem- ber in question wrote a letter to the recorder of the lodge, in whose possession the certificate was, expressing his. wish for a change of beneficiary , but paid no fee. The supreme lodge, which issued the old certificate, recognized this let- ter and cancelled the old and issued a new certificate as requested, and it was held that the old beneficiary in the first certificate could not set up this informal change as against the society, but that the waiver of the informalities was effectual. This view is not. in accordance with the great weight of authority, which is to the effect that a benefit society cannot waive the formalities prescribed by its laws for change of beneficiary, because they are a part of the contract and further, because they are not waiving their own rights but those which are secured by the con- tract to the first beneficiary.^ Where, by the laws of a benefit society, the certificate was only assignable by and with the consent of the association thereon indorsed, and the member had assigned the certificate without such con- sent of the association, it was held that the association could insist upon this provision of the contract. Further, that the receipt by the association from the assignee, after the death of the assignor, of assessments due on the certificate was not such a waiver on its part, or such a recognition of of the rights of the assignee as would entitle him to recover on the certificate, because " the assessments due the asso- ciation might be paid by any one, and the fact that they 1 Manning o. A. O. IT. W., supra. ' See authorities cited, ante, § 307. 646 WAIVER AND ESTOPPEL. § 431 were received from a volunteer, or any one else, did not affect the contract." ^ § 431. Waiver or Estoppel by Receipt of Premium or Assessments. — If the company receives payment of the premium with knowledge of the breach of the conditions of the policy, it will ordinarily be held to have waived the breach and be estopped from alleging such breach as a ground of forfeiture.^ The Supreme Court of Illinois, however, has said: ' " Jhe mere act, however, of receiving, or collecting the premium by the insurance company, with knowledge of an existing right of forfeiture, has, so far as we know, never been held to estop the company from set- ting up such forfeiture, if the assured had no reason fairly to conclude, from the acts and declarations of the company, or its agents, that the forfeiture had been or would be waived, when he made the payment of the premium, or unless the payment was made in reliance upon the validity of his policy, induced by the acts, declarations or silence of the company." But it seems that good faith would require the company, when it becomes aware of a right of forfeit- ure to avail itself of ,it within a reasonable time, and if, after obtaining such knowledge, it collects a premium, it should be held to have waived the forfeiture. Whether, after receiving assessments upon a benefit certificate, a benefit society in an action thereon after a loss has occur- red, can set up the defense of ultra vires, or whether it is estopped, is a question of some doubt. It has been held that under such circumstances the society is precluded from 1 National Mut. Aid Soc. v. Lupoid, 101 Pa. St. 111. * Mershon v. National Ins. Co., 3t la. 87; Viele v. Germania Ins. Co., 26 la. 55; Phcenlx Ins. Co. v. Lansing, 15 Neb. 494; Lasher c. Northwest- em, etc., Ins. Co., 55 How. Pr. 318; Martin v. New Jersey Ins. Co., 44 N. J. L. 273; Pomeroy v. Kocky Mountain, etc., Ins. Co., 9 Colo. 295. ' Northwestern Mnt. L. Ins. Co. v. Amerman, 119 HI. 329; ION. East. Rep. 225; 7 West. Rep. 712. 647 § 431 WAIVEB AND ESTOPPEL. its defense.^ Upon grounds of public policy other authori- ties hold differently.^ The receipt of an assessment with one overdue waives the forfeiture for non-payment; ^ and if it has been in the habit previously of receiving assess- ments after they were due, without question, it may be estopped from setting up the defense of forfeiture for non- payment at the specified time.* The Supreme Court of Wisconsin has held * that the doctrine of waiver applies to mutual benefit societies, and that if assessments are received after the death of a member, by the local lodge, the retention of them by the Supreme Lodge, with knowl- edge, waived the forfeiture.* It is doubtful, however, whether a subordinate lodge, or its ministerial oflScer, can waive the positive requirements of the laws of the order." There will be no waiver of forfeiture for non-payment of an assessment by receipt of a subsequent one if such receipt is by mistake,* nor if the company had no knowl- edge of the breach of condition,' nor, if the custom of the company was to receive overdue premiums only if the in- 1 Matt V. Eoman Catholic, etc., Soc, 70 la. 465; 30 N. W. Eep. 799; Bloomington M. Ben. Assn. v. Bine, 120 HI. 121. ' American Legion of Honor v. Ferry, 110 Mass. 680; National M. Aid Soc. ■».' Lupoid, 101 Pa. St. Ill ; Webster v. BaSalo Ins. Co., 7 Fed. Eep. 399; 2 McC. 348; ante, § 244. « Tobin V. Western Mut. Aid Soc, 71 la. 261; 33 N. W. Eep. 663; Eiceo. NewEaglandM. AidSoc. (Mass.),5 N. Eng. Eep. 813; 15N.Ea8t Eep. 624; Boswell v. Equitable Aid Union, 13 I'ed. Eep. 840. ' Stylow V. Wisconsin Odd-fellows' M. L. Ins. Co., 69 Wis. 224; 34 N. W. Eep. 151. 5 Erdmannv. Mut. Ins. Co., Hermann's Sons, 44 Wis. 376. » Illinois Masons' Benev. Soc. v. Baldwin, 86 111. 479. ' BorgraefEe v. Supreme Lodge K. and L. of H., 22 Mo. App. 127; 26. Mo. App. 218 ; Miller v. Hillsborough F. Assn., 42 N. J. Eq. 458 ; Swett v. Citizens Mut E. Soc, 78 Me. 541. But see Manning b. A. O. U. W. (Ky.), 5 S. W. Eep. 385; Splawn v. Chew, 60 Tex. 532; Erdmann v. Wisconsin, etc., Ins. Co., 44 Wis. 376. ' Elliott V. Lycoming, etc., Ins. Co., 66 Pa. St. 22. ' Gilbert v. North Am. F. Ins Co., 23 Wend. 43; Bobertson v. Metro- poUtan L. Ins. Co., 88 N. T. 641. 648 WAIVER AND ESTOPPEL. § 431 sured was in good health and, in fact, the insured at the time of such receipt was not in good health.^ There may be a conditional waiver in receiving premium or assessments, as if when an overdue premium is paid, it be stated that it is received on condition that the insured is in health, or if such had been the custom of the company.' While the occasional reception of premiums after they were due is evidence from which a waiver of the condition of forfeit- ure may be found, the favor granted by renewing the policy after one failure to pay at the day stipulated, cannot of itself bind the company to waive a subsequent forfeiture that attached by reason of another failure.* Especially if the health of the insured has become impaired.* To make out a case where receipt of overdue premiums can be relied upon to create a usage that will estop the company from claiming a forfeiture for non-payment of assessments, it must be shown not only that premiums were habitually re- ceived after they were due, which would be a waiver of those several forfeitures, but also that the insurer intended to waive the future prompt payment of the premiums as one of the conditions of the contract, or that the assured, as a reasonable man, was led to believe by its actions that it had waived this condition .* If an agent , without authority to waive a forfeiture for non-payment of a premium at matur- ity, has received the unpaid part of a premium on a for- feited policy, for which he gave an antedated receipt, which premium the company has received, in ignorance of the 1 Lewis V. PhcEnix M. L. Ins. Co., U Conn. 73. » EockweU V. Mat. L. Ins. Co., 27 Wis. 372; 20 Wis. 335; 21 Wis. 548, Grossman r. Mass. Benev. Assn., 143 Mass. 435; Unsell v. Hartford L. & A. Ins. Co., 32 Fed. Rep. 443. » Marston v. Mass. M. Lite Ins. Co., 59 N. H. 92; Mutual L. Ins. Co.c. Girard L. Ins. Co., 100 Pa. St. 172; MobUe L. Ins. Co. v. Pruett, 74 Ala. 487; Thompson v. Knickerbocker L. Ins. Co., 2 Woods, 547; 104 TJ. S. 252. * National Mut Ben. Assn. v. Miller (Ky.), 2 S. W. Rep. 900. • Crossman v. Mass. Ben. Assn., 143 Mass. 435. 649 § 432 WAIVEK AND ESTOPPEL. true circumstances under which it was paid, it will not be estopped from claiming the forfeiture if the money so paid be tendered back on discovery of the facts.^ The com- pany will be estopped from contesting the validity of a policy if, with knowledge of the facts, it has assured the holder that there will not be any question over it and there- by led him to pay the premium,^ or if it recognizes, after a default, the continued existence of the policy by notifying the assured that he is liable to suspension unless he at once pays.^ And a forfeiture may be waived by failure to offer to return the unpaid premium note, as required by the con- tract, although the company did give the notice of forfeiture under the contract.* § 432. The Same Subject: Notices'of Premium or As- sessments. — The mere sending of assessment notices to members who have been suspended for non-payment of as- sessments, the same being sent for the purpose of inviting reinstatement, will not of itself amount to a waiver of the forfeiture,* nor will the receipt of many assessments over due, if the member was required at the time of payment of such assessments to furnish certificates of health which were not furnished when the last over due assessment was received, and the insured was not at the time in health.* And, if the payment be extended as an act of kindness to a certain time, and it is not made withitf that time, there will be no waiver.' An estoppel cannot be claimed unless the insured was induced by the company to do, or omit to do, an act, I Union Mat. L. Ins. Co. v. McMuUen, 24 Ohio St. 67; DiboU v. lEtna, li. Ins. Co., 32 La. Ann. 179. * Ferguson v. Mass. Mat. L. Ins. Co., 32 Han, 306; 102 TS. Y. 647. » Olmstead v. Farmers' M. F. Ins. Co., 60 Mich. 200. * Johnson t). Southern M. L. Ins. Co., 79 Ky. 403. ^ Mutual Protection L. Ins. Co. v. Laury, 84 Pa. St. 43. " Crossman v. Mass. Ben. Assn., 143 Mass. 435. ' lUlnois Masons' Ben. Soc. v. BaldTrin, 86 lU. 479; Serross v. West- em M. Aid Soc, 67 la. 86. 650 WAIVER AND ESTOPPEI.. § 432 which he would not otherwise have done or omitted.^ So, M here the secretary of a company, in which the husband of the plaintiff held a life policy, wrote him Dec. 7th that certain assessments, which were then over due and by non- payment of which the policy was forfeited, would be re- ceived and the forfeiture waived if remitted immediately. Remittance was not then made but on the 25th of the month the insured was taken sick and on the 31st he died. On the 30th of that month at the request of the insured the remittance was made and printed receipts were returned by the company, each containing the provision that it should be valid only on condition that the assured was alive and in good health on the day of its date ; but on the margin of each receipt the secretary had written the words " no de- fault." After the company was informed of the death of insured it returned the money. The court held that because remittance was not made immediately upon receipt of the letter of Dec. 7th, the offer therein contained to waive the default was at an end.^ But the insurer wiU be estopped from setting up non-payment of premiums as a cause of forfeiture if it has been in the habit of giving notice of the amount of the premium and time of payment and without notice ceases to do so ; * or if it? general agent has waived the prompt payment of the premium ; * or if its agent, acting within the apparent scope of his authority, has received a part of the premium and given time for the balance,^ or if he, with knowledge of the company, has received the entire premium after the day.'' The company cannot change its 1 Ultnois Masons', etc., Soc. v. Baldwin, supra. • Seivoss V. Western Mut. Aid Soc, supra. 8 Insurance Co. c.Eggleston, 96 U. S. 572; ante, §§ 350, 362. • Marcus v. St. Louis M. L. Ins. Co., 68 N. Y. 625; Whitehead v. New- York Jj. Ins. Co., 102 N. Y. 143, reversing 38 Hun, 425; Dean v. .Etna L. Ins. Co., 62 N. Y. 642, reversing 2 Hun, 358; Palmers. Phoenix M. L. Ins. Co., 84 N. Y. 63. » Murphy v. Southern L. Ins. Co., 3 Baxt. (Tenn.) 440. • Froelich v. Atlas L. Ins. Co., 47 Mo. 406. 651 § 433 WAIVEK AND ESTOPPEL. course of dealing or custom of giving notice or receiving premiums after the day, without notice to the insured of such change.^ There are fine distinctions in the cases in regard to duty of the company to give notice of the falling due of a premium. Where the amount of the premium and the place of its payment are iixed and certain then the com- pany is not only not bound to give notice, but in fact also will not be bound to continue to give notice even, if it has been in the habit of giving it, unless the custom has continued so long as to justify the insured in relying on it, and he must actually have relied upon such custom and have been misled thereby. But if the amount of the premium is un certain, because liable to bo reduced by dividends, and the company is in the habit of notifying the assured of the amount of these dividends and of the cash payment to be made, then, if it does not give the customary notice, it will be estopped from claiming forfeiture for non-payment of the premium.^ §433. The Same Subject: General Kule. — If the company has by its course of conduct, acts or declarations, or by any language in the policy, misled the insured in any way in regard to the payment of premiums, or created a belief on the part of the insured that strict compliance with the letter of the contract as to payment of the premium on the day stipulated would not be exacted, and the insured in consequence fails to pay on the day appointed, the com- pany will be held to have waived the requirement, and will be estopped from setting up the condition as cause for for- 1 Manhattan L. Ins. Co. t>. Smith, 44 Ohio St. 156; Glrard L. Ins. Co. V. Mut. L. Ins. Co., 86 Pa. St. 236; Phoenix Ins. Co. ■». Doster, 106 U. S. 30; Meyer B. Knickerbocker L. Ins. Co., 73 N. Y. 516; 29 Am. Rep. iOO; Atty. -General v. Continental L. Ins. Co., 33 Hun, 138; Dilleber e. Knick- erbocker Ins. Co., 76 N. Y. 567; 7 Daly, 540; Mayer v. Mut. L. Ins. Co., 38 la. 304; 18 Am. Rep. 34. ' Phoenix Mut. L. Ins. Co. v. Doster, 106 U. S. 30; Manhattan L. Ins. Co. V. Smith, 44 Ohio St. 166 ; ante, § 360. 652 WAIVER AND ESTOPPEL. § 434 feiture.^ In determining whether there has been a modifi- cation of the terms of the policy by subsequent agreement, or a waiver of the forfeiture incurred by the non-paymnet of the premium on the day specified, the testis whether the insurer, by his course of dealing with the assured, or by the acts and declarations of his authorized agents, has induced in the mind of the assured an honest belief that the terms and conditions of the policy, declaring a forfeiture in event of non-payment on the day and in the manner prescribed, will not be enforced, but that payment will be accepted on a subsequent day, or in a different manner ; and when such belief has been induced, and the insured has acted on it, the insurer wiU be estopped from insisting on the forfeiture.* The issue of a certificate after an assessment is in default is a waiver of forfeiture for its non-payment.* § 434. General Rales of the Law of Waiver or Estoppel apply to Insurance Contracts. — Questions of waiver or estoppel in cases relating to insurance contracts are to be determined by the application of the same rules as in cases upon other contracts. While we have referred to some acts and circumstances under which either a waiver or an estop- pel has been held to exist, it is not possible to specify what words or conduct will in every case amount to waiver of the 1 Protection L. Ins. Co. ». Foote, 79 111. 361 ; Appleton v. Phoenix Mnt. L. Ins. Co., 59 N. H. 541; Fowler v. Metropolitan L. Ins. Co., 41 Hnn, 357; Washoe Tool Co. v. Hibemia F. Ins. Co., 66 N. Y. 613: 7 Hnn, 74; Eqnitable Ins. Co. v. McCrea, 8 Lea, 541 ; Steele v. St. Louis M. L. Ins. Co., 3 Mo. App. 207; Piedmont & Arlington, etc., Ins. Co. v. Fitzgerald, W. & W. (Tex.) 784; Home L. Ins. Co. v. Pierce, 75 111. 426; Insurance Co. V. TuUidge, 39 Ohio St. 240; Southern L. Ins. Co. v. McCain, 96 IT. S. 84. 2 MobUe Life Ins. Co. v. Pruett, 74 Ala. 487; Insurance Co. v. Eggle- ston, 96 U. S. 572; Tripp v. Insurance Co., 55 Vt. 100; Phoenix Ins. Co. V. Doster, 106 TJ. S.30; Hanley v. Life Association, 69 Mo. 380; Southern L. Ins. Co. V. Kempton, 56 Ga. 339; Am. L. Ins. Co. v. Green, 57 Ga. 469; Cotton States L. Ins. Co. v. Lester, 62 Ga. 247. > Boswell V. Equitable Aid Union, 13 Fed. Rep. 840. 653 § 435 WAIVER AND ESTOPPEL. requirements or conditions of the policy, or estop the com- pany from insisting upon them. Each case rests upon its own facts and must be determined by the general rule, ap- , plicable to all kinds of contracts, for what might under some circumstances estop the company would not in another case where the facts were only very slightly different. Whether a party has waived a condition in a contract is a mixed question of law and fact, but when the facts are found, it is for the court to say whether or not the com- pany has been estopped from claiming its rights under the policy by reason of what it has done or failed to do, § 435. Calling for Proofs of Lioss Waives Breach of Conditions. — If the company, after.being notified of a loss, has knowledge of false answers in the application or of a breach of the conditions of the policy and, notwithstanding that fact, calls for proofs of loss; or if, after receiving proofs, with knowledge of such false answers, it asks for additional proofs, it thereby waives the right to rely upon the breach of warranty or of the condition. ^ The reason of the rule is obviously that the company should not be permitted by its conduct to cause the insured to go to the expense of proofs of loss, when it knows that it will be a useless act. The question has arisen more frequently in cases of fire than in those of life insurance, but there is no reason why the principle should not apply to both. The rule is to be applied with caution, for to constitute a waiver 1 Cobbs V. Fire Assoc, etc. (Mich.), 36 N. W. Bep. 222; 13 W. Kep. 149; Martliinson v. North British, etc., Ins. Co. (Mich.), 31 N. W. Eep. 291; 7 West. Bep. 637; Webster v. Phoenix Ins. Co., 3fi Wis. 67; Northwestern, etc., Ins. Co. v. Germania F. Ins. Co., 40 Wis. 446; Cans v. St. Paul, etc., Ins. Co., 43 Wis. 108; Cannon v. Home Ins. Co., 53 Wis. 585, where the seemingly opposite cases of Fitchpatrick v. Hawkeye Ins. Co., 53 la. 335 and Phoenix Ins. Co. e. Stevenson, 78 Ky. 150; 8 Ins. L. J. 922, are distingaished ; Gterman F. Ins. Co. r. Gmnert, 112 lU. 68; Titus v. Glen's Falls Ins. Co., 81 N. T. 410; Canada Landed Credit Co. v. Canada, etc., Ins. Co., 17 Grant's Ch. (Up. Can.) 418. 654 WAIVER AND ESTOPPEL. § 435 or estoppel all the elements essential to the act must have been present ; the company must with knowledge of the breach have encouraged the assured to make proofs, and this encouragement must have materially influenced the per- formance of the indicated act. The Supreme Court of Iowa has well stated the doctrine in passing upon certain instructions. It said:^ "The general doctrine of the in- structions is that if defendant, with full knowledge of the facts out of which the forfeiture of the policy arose, neg- lected to declare its intention of insisting on the forfeiture, but, by its acts, recognized and treated the policy as a valid and subsisting contract between it and plaintifp, and induced him to act in that belief, it is precluded now from insisting on the forfeiture. This doctrine is excepted to by defend- ant. Its position is that to constitute a waiver of the pro- visions of the policy providing for the forfeiture, the acts relied on must be attended with such equitable circumstances as would create an estoppel; and, as plaintiff was not in- duced by the acts in question to in any manner change his position with refereiice to the subject of the negotiation, and as the acts were done after the forfeiture occurred, they do not create an estoppel. We think, however, that this position is not tenable. The principle on which the Waiver of a forfeiture has been maintained in such cases is undoubtedly similar to that of estoppel. It was so held by this court in Viele v. Germania Ins. Co.^ But we think it is not true that such waiver can be created only by such acts or conduct as would create a technical estoppel. Neither forfeitures nor estoppels are favored by the law, and it fol- lows necessarily from this consideration that the waiver ot a forfeiture may be sustained by circumstances which do not present the strong equities which would be required to create an estoppel. When plaintiff asserted a claim under 1 HoUis V. state Ins. Co., 65 la. 454. « 26 la. 55. 655 ^ 436 WAIVER AND ESTOPPEL, the policy for the loss, and defendant was informed of the facts out of which the forfeiture grew, it had the right at once to treat the contract as at an end. If it had elected sim- ply to remain silent, perhaps a waiver could not have been inferred from its silence. But if, with knowledge of the circumstances, it continued to treat the contract as of bind- ing force, and induced plaintiff to act in that belief, the rule holding that it thereby waived the forfeiture is a very just one. We think, therefore, that the general doctrine of the instructions is correct, and it is well sustained by the authorities." ^ There can be, however, no waiver of a stipulation in an agreement unless with knowledge of the circumstances,'' consequently false representations in pro- curing the policy are not waived by demanding additional proofs of loss, the fact that the representations were false not being known to the company when it made such a demand.* • § 436. Other Acts of Insurer in Regard to Proofs of Xioss Amounting to Waiver of Particular Itequirements. — In treating of the subject of proofs of loss,* we referred to a, few of the most elementary rules of waiver and estoppel which are now so well established as to be axiomatic. Some have indeed never been questioned. The first of these is that when proofs are made in time, the company must point out specifically its objections thereto, or it will be estopped to say that the proofs are insufficient ; if it make? specific objections it waives all others; and if the proofs are cor- rected so as to obviate the objections made and they are 1 Titus V. Glen's Falls Ins. Co., 81 N. Y. 410; Insurance Co. v. Norton, ■96 U. S. 234; Webster d. Phoenix Ins. Co., 36 Wis. 67; Northwestern Mut. L. Ins. Co. V. Germania Ins. Co., 40 Wis. 453; Cannon ». Home Ins. Co., 53 Wis. 585. 2 Bennecke v. Conn. Mnt. L. Ins. Co., 105 U. S. 355. 8 Ryan v. Springfield F. & M. Ins. Co., 46 Wis. 671; Phillips v. Grand River, etc., Ins. Co., 46 Up. Can. Q. B. 334. < Ante, § 411, et leq. 656 WAIVER AXD ESTOPPEL. § 328 still not satisfactory, its objections must again be stated within the time limited for making proofs or it will be estopped. The company must point out the defects in the proofs of loss within a reasonable time.^ Mere silence can- not often be construed to be a waiver, but generally the reverse.^ Silence is not a waiver if the proofs are re- ceived after the stipulated time.' Xor are defects in the proofs waived by a mere rejection of the claim of the in- sured, it not appearing on what ground it was rejected ; * but otherwise if the cause of rejection did appear and such cause was not for defects in the notice or statement of loss.^ The disclaimer of aU liability, or the placing of the refusal to pay on other grounds than the failure to furnish proofs, is a waiver of such proofs, and they need not, under such circumstances, be furnished.^ An adjustment of the loss 1 Phoenix Ins. Co. v. Tucker, %2 HI. 64; Fire Ins. Co. v. Felrath, 77 iUa. 194; Planters' M. Ins. Co. j,. Engle, 52 Md. 468; Butterworth v. WestemAss. Co., 132 Mass. 489; Eliot, etc., Bank v. Commercial Union |n6. Co., 142 Mass. 142; Mercantile Ins. Co. c. Holttians, 43 Micli. 423; Swan r. Llyerpool, etc., Ins. Co., 52 Miss. 704; Am. L. Ins. Co. v. Ma- bone, 56 Miss. 180; Breckenridge v. Am. Central Ins. Co., 87 Mo. 62; Hil>emia M. F. Ins. Co. e. Meyer, 39 N. J. L. 482 ; Titus v. Glens Falls Ins. Co., 81 N.Y. 410; Continental L. Ins. Co. v. Rogers, 119 Bl. 474; ION. East. Rep. 242; 8 West. Rep. 88; Myers v. Council Bluffs Ins. Co. . Westchester Co. M. Ins., io Wend. 379; Graves r. Washington M. Ins. Co., 12 Allen, 391. But this case of Spooner v. Vermont, etc, Ins. Co., supra, does not seem to be logically right. • Covenant Mnt. Ben. Assn. v. Spies, 114 111. 4C3; Grattan c. Metro- poUtan L. Ins. Co., SO N. T. 281; Mtaa. Ins. Co. v. Shryer, S5 Ind. 362; 657 42 § 437 WAIVER AND ESTOPPEL. and a promise to pay estop the company fro m denying its liability.^ § 437. When Insarer is Precluded from Certain De- fenses. — It has been also held that when sued upon a policy the company cannot make any objections to paying a loss that are different from or additional to those which it stated when it refused to pay.^ An insurance company, however, is not deprived of the defense of breach of warranty be- cause, when a claim is first presented, while denying its liability, it omits to disclose the ground of defense or states another ground than that on which it finally relies ; there must be in addition evidence justifying a finding that, with full knowledge of the facts, there was an intention to aban- don or not to insist upon such defense, or that it was pur- posely concealed under circumstances calculated to, and which actually did, mislead the other party to his injury.* Carson v. German Ins. Co., 62 la. 433; Phoenix Ins. Co. v. Adams (Ky.), 8 Ky. Law Rep. 532; Danl v. Firemen's Ins. Co., 35 La. Ann. 98; Home Ins. Co. V. Gaddis, 3 Ky. L. Rep. 159 (Ky. Ct. Appeals) ; Anrora, etc., Ins. Co. u. Krauich. 36 Micti. 289; Rokes v. Amazon Ins. Co., 51 Md. 512; Planters' Ins. Co. v. Comfort, 50 Miss. 662; German Am. Ins. Co. V. Davidson, 67 Ga. 11; Merchants', etc., Ins. Co. v. Vining, 68 Id. 197; Goodwin v. Mass. Mut. L. Ins. Co., 73 If. Y. 480 ; Kantrener v. Perm. M. L. Ins. Co., 5 Mo.App. 581; Marston v. Mass. M. L. Ins. Co., 59 N. H. 92; King c. Hekla F. Ins. Co., 58 Wis. 508; Zielke v. London Ass. Corp., 64 Id. 442; Knickerbocker L. Ins. Co. v. Pendleton, 112 U. S. 696; Home Ins. Co. V. Baltimore W. Co., 93 TJ. S. 546; Payn v. Mut. Belief Soc, 6 N. Y. St. R. 365; 17 Abb. N. C. 53; Penn. F. Ins. Co. v. Dougherty, 102 Pa. St. 568; Girard L. Ins. Co. ». Mut L. Ins. Co., 97 Pa. St. 15; Kan- sas Protective Union v. Whitt (Kan.), 14 Pac. Rep. 275; Lazensky v. Sup. Lodge K. of H., 31 Fed. Rep. 592, and many others. See ante, § 413. 1 FishbackB. Phoenix Ins. Co., 54Cal. 422; Simpson v. Windham, etc., Ins. Co.. 57 N. H. 160; Greenfield v. Mass. Mut. L. Ins. Co., 47 N. Y. 430; Smiths. Glens Falls Ins. Co., 62 N. Y. 85; Reed v. McLaughlin, 2 Han. (N. B.) 128; Levy v. Peabody Ins. Co., 10 W. Va. 560. 2 Castner v. Farmers' M. Ins. Co., 50 Mich. 273; Brink v. Hanover F. Ins. Co., 80 N. Y. 108. ' Devens v. Mechanics', etc., Ins. Co., 83 N. Y. 168 ; Graham v. Fire- men's Ins. Co., 9 Daly, 341. 658 WAIVER AND ESTOPPEL. § 437 And a party to a litigation cannot be confined to the position first taken by him and out of which the litigation arose if he took such position under a mistake of facts that was due to the want of information which the other party ought to have given him.^ An offer to compromise can never estop the party making it from setting up any defense, or assert- ing any right to which the offer relates,^ but by paying the amount due on a policy the company waives all questions as to the validity of the contract which it had the means of raising when it paid, expept fraud.* * Lyon V. Travelers' Ins. Co., 55 Mich. 141. • Cook 0. Continental Ins. Co., 70 Mo. 610. > Metropolitan L. Ins. Co. v. Harper, 3 Hughes, 260. Citing National L. Ins. Co. V. Minch, 53 N. T. 114; Mutual L. Ins. Co. v. Wager, 27 Barb. 354. A number of questions arise as to the effect of proofs of loss after action brought to recover on the policy, and to what extent the assured is precluded from contradicting the statements therein made, but this matter relates more properly to evidence and will be considered in the following chapter. Post, § 171. 659 CHAPTEE XrV. REMEDIES, PRACTICE, PLEADING AST) EVIDENCE, INSOLVENCY AND WINDING UP. § 440. Concerning the Subject of this Chapter. 441. Parties and Eorms of Action in Suits by or against Voluntary Associations. 442. Remedies of Members of Benefit Societies, Unlawfully EzpeUed: Jurisdiction of Equity: Mandamus: Action for Damages. 443. Limitations in Policies on Time Within which Action must be Brought Thereon, or as to place of Bringing Suit, or as to Issue of Execution. 444. When the Statute of Limitations Applies. 446. When the Limitations do not Attach: Waiver; Wxcuses for not Bringing Suit. 446. When Time of Limitation begins to Run. 447. Condition of Limitation, how taken Adyantage of. 448. Condition of Limitation as to time of Bringing Suit not Usual in Life Insurance Policies : Construction. 449. Conditions Concerning Arbitration Seldom found in Life Insur- ance Policies. 450. Agreements to Refer to Future Arbitration when and to what Ex- tent Valid. 461. Pleading in Actions on Insurance Contracts. 452. Parties to Actions on Insurance Contracts. 463. Actions onB:;netit Certificates and against Benefit Societies for Benefits : Measure of Damages is Actions at Law. 454. Declaration or Petition. 456. Pleas, or Answers : Replications. 466. Evidence in Actions on Insurance Contracts. 467. Presumptions. " 458. Admissibility of Parol Evidence to Explain or Modify Answers of Assured in Application. 459. Declarations of Agent. 460. Declarations of Assured. 461. Evidence of Physician as to Knowledge Acquired in course of His Employment. 462. Opinion Evidence. 463. Offering Application in Evidence as part of Contract, 464. Evidence of Preliminary Negotiations or Agreements. 660 REMEDIES, PRACTICE, PLEADING AND EVIDENCE. § 440 § 465. When Parol Evidence Admissible. 466. Canvassing Documents, Prospectuses, Bules, etc. 467. Evidence of Usage. 468. Construction of Insurance Policies. 469. Burden of Proof. 470. Evidence of Death. 471. Proofs of Loss as Evidence. 472. Foreign Insurance Companies can Remove Causes to Federal Courts. 473. Betaliatory Legislation. 474. Insurance Companies Subject to Insolvency and Bankruptcy Laws Like Other Corporations. 476. Winding up by Insurance Commissioner: Special Deposit with State; Insolvence of Mutual Company : EfEect of Charter Pro- visions. 476. Attachments of Company's Property by Policy Holders. 477. Receivers of Insurance Companies. 478. Insolvent Life Insurance Companies: Status of Policy Holders. 479. Insolvent Benefit Societies. 480. On Dissolution of Mutual Insurance Company Surplus Assets, After Creditors are paid, Vest in State. § 440. Concerning the Subjects of this Chapter. — We shall not attempt, within the limits of this single chap- ter, to discuss at length all the matters, or examine all the cases, relating to remedies, practice, pleading and evidence in suits upon insurance contracts. If it were even possible to do this it would not be desirable, for the various States have different methods of procedure and remedies and prac- tice are not uniform ; many of the decisions involve local questions only, and are of no general value. We can only refer to certain primary rules and cite authorities bearing on general principles, leaving the practitioner to supplement what may here be said by reference to local statutes and decisions. There is no reason why remedies, or pleadings, or evidence in suits upon insurance contracts should be ex- ceptions and governed by special rules. In fact, the same fundamental and general principles apply to remedies upon insurance policies as to those upon other contracts. The cases here to be referred to or examined are simply the application of general principles to individual, or special, 661 § 441 REMEDIES, PRACTICE, PLEADING AND EVIDENCE. conditions of facts. We have necessarily, in the preceding chapters, often spoken incidentally, and sometimes directly, of many matters which, perhaps, might have been more properly reserved until now, for it is difficult to omit ref- erence to questions of remedies, procedure or evidence, when ' they have been discussed in connection with other subjects. What is to be here written, therefore, may sometimes be supplementary to what has gone before and it is to be taken in connection therewith. The various matters con- sidered in this chapter are also, to a great extent, inharmo- nious and disjunctive, but it seemed best to here collect all the oases of general value bearing on points not before dis- cussed, as well as those relating to the subjects mentioned in the title. § 441. Parties and Forms of Action in Suits by or against Voluntary Associations. — In what way suits shall be brought by or against voluntary, unincorporated associations, and whether all the members of such society shall be made parties, or ofily its president or treasurer, is sometimes regulated by statute ; ^ but generally the ques- tions of parties and form of action are determined as in ordinary cases. Voluntary associations are recognized by the common law and the right of members to sue in behalf of themselves and others in matters pertaining to or affect- ing their common interests has been sustained,* In what way benefit societies, if voluntary associations merely, are to be sued or are to sue, depends upon whether the contro- versy is internal, as where £t member sues, or external, as where an outsider sues or is sued by the society, HoW actions are to be brought also depends upon the way in 1 Laws N. Y. 1851, ch. 455, § 1 ; Ebbinghausen v. Worth Club, 4 Abb. N. C. 300; Austin v. Searios, 16 N. Y./112. . 2 Beatty v. Kurtz, 2 Pet. 566; Hears v. StVulton, 30 Md. 142; Fells v. Head, 8 Ves. 70; Lloyd u. Loairing, 6 Ves. 773; Babb ». Reed, 5 Bawle, 151. t/ 662 REMEDIES, PHACnCE, PLEADING AND EVIDENCE. § 441 which the association is^^ regarded, whether as an acting corporation or partnership. Of these questions we have already spoken.^ A lodge is not liable in an action for an act of wrong, outside of the declared and real purpose of the association, for such wrongful act stands by itself to be answered for only by those who joined in its perpetration.^ If slanderous words are spoken by a lodge, or mutual asso- ciation, of a member, as by adopting a resolution contain- ing the objectionable language, an action will not lie against the association ab a partnership, but the redress is against the wrong-doers in their individual capacity.^ And where a committee, appointed by an incorporated lodge of a mutual aid society to investigate certain bills incurred for expenses in sickness and presented by a member for pay- ment, but not specially directed to make a printed report, did make a printed report which contained libelous matter in reference to such member and placed copies thereof on the secretary's desk at a regular meeting of the society; and members took copies of the same, which afterwards came into the hands of persons not members; and the society afterwards adopted the report : it was held * that there was no publication by the society of such libelous report to render it liable therefor, but whatever was done in relation to its being circulated and printed was the indi- vidual acts of the committee and of certain inembers. Words spoken in the lodge room, reports of committees, or resolutions adopted by the lodge, that are slanderous or libelous, are as a rule privileged, although by a malicious publication certain members responsible therefor might be • Ante, §§ 27 et seq; Lindley in Partnership, bk. 1, ch. 1, § 6; Snow v. Wheeler, 113 Mass. 179; McKinley v. Irvine, 18 Ala. 681, 706; McMahon ». Ranhr, 47 N. Y. 67. « Snow V. Wheeler, 113 Mass. 179. » Gilbert v. Crystal Fountain Lodge (Ga.), 4 S. W. Rep. 906. * De Senancour v. Societe La Prevoyance (Mass.), 6 N. Eng. Eep. 270; 16 N. Bast. Rep. 563. 663 § 442 REMEDIES, PEACTICE, PLEADING AND EVIDENCE. personally liable.^ It is unnecessary, however, to here consider further this and similar questions. Equity takes cognizance of the affairs of voluntary associations, and grants relief by treating them as partnerships, or by look- ing into the scheme and compelling conformity to it; or reforming it and enforcing it; or if the plan is deemed impracticable, decreeing a dissolution and dis- tributing the funds; and, speaking generally, it re- dresses, as far as it can, the grievances of the members of these societies who complain to it of injustice affecting their pecuniary interests therein. The general rules of equity apply and benefit societies in the eye of the law, are, if not incorporated, to be governed and aided, or wound up and their affairs settled, as in the case of other volun- tary associations.^ If a bill is filed to distribute the funds of a voluntary association formed for social or charitable purposes among its members, a decree will not be granted unless it clearly appears that its operations have ceased, its objects entirely failed and its purposes abandoned - § 442. Remedies of Members of Benefit Societies Un- lawf ally JBxpelled : Jurisdiction of Equity : Mandamus : Action for Damages. — The courts have frequently been called upon to restore members of benefit societies who have been expelled unlawfully, or are threatened with un- lawful expulsion. In another place ^ we have considered the general principles governing the expulsion,, or disci- pline, of members of incorporated and unincorporated soci- eties, and it is not necessary to again refer to them. We 1 Shurtleff v. Stevens, 61 Vt. 501 ; Kirkpatrick v. Eagle Lodge, 26 Kan. 384. « Van Houten v. Pine, 36 N. J. Bq. 133 ; Pearce v. Piper, 17 Ves. 1 j Lind- ley on Partnership, bk. IV; ante, § 27. , ^8 Eoper V. Burke, 83 Ala. 193; 3 S. Rep 439; Burke v. Roper, 79 Ala. 138; Strickland v. Pritchard, 37 Vt. 324; Robbins v. Waldo Lodge, 78 Me. 565; 7Atl. Rep. 540; 3N, Eng. Rep. 398; Hlnkley v. Blethen, 78 Me. 221. * Ante, § 95 et seq. 664 REMEDIES, PRACTICE, FLEADINQ AND EVIDENCE. § 442 may, however, here repeat the rales that if the lodge, or expelling tribunal, has jurisdiction, if the by-law defining the offense and punishment are valid, and the proceedings of the lodge, or its tribunal, are regular, the action thus taken is final. Neither courts of law, nor those of equity will in such case examine into the merits of the case. The only questions to be considered are: 1. Did the lodge, or its tribunal, have jurisdiction and proceed regularly? 2. Was the by-law establishing the offense and prescribing the punishment valid? If these questions be answered affirma- tively the civil courts will proceed no further. If a mem- ber of a benefit society is either vnrongfully threatened with expulsion, or has been unlawfully expelled, he may resort to the courts of equity and enjoin the unlawful proceedings or invoke assistance in being restored.^ The court will, however, only look so far into the case as to satisfy itself whether there has been an arbitrary or capricious exercise of power, or whether the society had jurisdiction, or the by- law under which it acted was valid ; if it finds that there was jurisdiction, and a valid by-law and no abuse of power, it wiU not interfere.* In a case in England,* where the question was as to the good faith of the governing com- mittee, five out of its eighteen members were allowed to testify that they acted bona fide, and were not influenced ^ Gregg V. Mass. Med. Soc, 111 Mass. 185, contra. ' Ante, § 108; Dawkins v. Antrobus, 17 Ch. D. 616; 441,. T. 557; 29 W. E. 511; Hopkinson v. Exeter (Marquis), 5 L. K. Eq. 63; 37 L. J. Ch. 173; 16 W. E. 266; Bichardson-Gardner v. Freemantle, 24 L. T. 81; 19 W. E. 256; Littleton v. Blackbume, 45 L. J. Ch. 219; 33 L. T. 641; La- bouchere v. WhamclifEe (Earl), 13 Ch. Div. 346; 41 L. T. 638; 28 W. E. 367; Fisher v. Keane, 11 Ch. Div. 358; 49 X. J. Ch. 11; 41 L. T. 335; Leech v. Harris, 2 Brewst. 571 ; Biddell v. Harmony F. Co., 8 Phila. 310; Speny'8 Appeal, 116 Pa. St. 391 ; 9 Atl. Eep. 478; 8 Cent. Eep, 215; Loubat V. Leroy, 16 Abb. N. C. 1 and note; Olery r. Brown, 51 How. Pr. 92; Fritz V. Muck, 62 How. Pr. 69; Van Houten v. Pine, 36 N. J. Eq. 133 and note. « Eichardson-Gardner v. Freemantle, 24 L. T. (n. s.) 81 ; 19 W. E 266. 665 § 442 REMEDIES, PRACTICE, PLEADtXG AND EVIDENCE. by the other party to the controversy. In another case ^ the court declined to take the plaintiff's assertion that in his belief, or in his suspicion, the committee acted capriciously in expelling him, in view of the fact that the committee, when called upon, swore that they had not exercised their power capriciously, unjustly, maliciously or corruptly, and gave their reasons. The most appropriate remedy for a member of a society wrongfully expelled is by a proceed- ing in mandamuH to compel his restoration.^ There are numerous very early instances of a resort to this remedy in the United States,* and it has always been regarded as par- ticularly effective and complete.* Tf the association is one having no property, and no property right is affected . and no personal injury is inflicted, it is doubtful whether a member however unjustly or summarily expelled, can be re- stored, by mandamus,^ or indeed has any remedy whatever.' The rules applying to ordinary proceedings in viandamus and the practice in such cases are to be followed by mem- bers of societies and lodges who invoke this potent and summary remedy. The petition, alternate writ and per- emptory ^rit must be sufficient in these as in other cases, and the hearing is the same. The general rule, already 1 Lyttletoh v. Blackbume, 45 L. J. Ch. 219; 33 L. T. (k. s.) 641. * AnU, § 109. * Delacey o. Nense Biv. Nav. Co., 1 Hawte, 274; 9 Am. Dec. 636 (1820) ; Green v. African, etc., Soc, 1 S. & R. 254 (1815). * State ex rel. Sibley v. Cartaret, 40 N. J. L. 295; State exrel. Waring V. Georgia Med. Soc, 38 Ga. 608; Koehler i. Mechanics' Aid Soc, l'2 Mich. 86; Commonwealth v. Penn. Ben. Inst., 2 S. & R. 141; Medical & Surg. Soc. V. Weatheriy, 75 Ala. 248 ; Fuller b. Plainfield, etc., 6 Conn. 532; State v. Adams, 44 Mo. 585; People v. N. T. Benev. Soc, 3 Hun, 361; Manning v. San Antonio Club, 63 Tex. 166; Evans v. Fhila. Clnb, 60 Pa. St. 107. " Sale V. First Keg. Baptist .Ch., 62 la. 26; 49 Am. Rep. 136; Bigby e. Connol, 28 W. B. 650; Manning v. San Antonio Club, 63 Tex. 166; White o. Brownell, 4 Abb. Pr. (n. s.) 162; 2 Daly, 358; Fritz v. Muck, 62 How. Pr. 69; People c. German, etc., Ch., 53 N. Y. 103. * Hardin V. Trustees Second Baptist Ch., 51 Mich. 137. 666 BEMEDIE8, PKACTICE, FLBADIN6 AND EVIDENCE. § 44J referred to, governs here also that the court upon the hear- ing will only inquire as to the jurisdiction of the lodge, or expelling tribunal, not into the merits of the case. This is a principle well established and adhered to.^ In order to enable the court to judge whether the society had juris- diction, the retnrn to an alternate writ of mandamus must set forth distinctly and in detail all the facts relating to conviction, both as to the accusation, or charge, and the methods and mode of proceeding. It is not enough to state in general terms that the member expelled was guilty of a violation of duty, the charges most be specific* The return must be exact and full and state facts, not legal con- elusions; ^ and these facts must not be set forth argument- aiively, inferentially, or evasively, but with certainty to a common intent.* It is enough in pleading a by-law to set out its legal effect without reciting its exact language, and under such a pleading the by-law itself may be put in evi- dence.* Notice is not sufficiently proved by the testimony of a witness that he served upon the accused member a written notice to appear at a particular time, where he also testifies that he cannot say what the notice was, as he handed it to the accused without reading it to him, and it was written by an officer of the society who was not ex- amined.* The Supreme Court of Michigan has said: ' *' The only ground on which this court can interfere with 1 Commonwealth v. Beneficial Soc., 8 W. & S. 247; Toram v. Howard Ben. A^5sn., i Barr, 519; Sperry's Appeal, 116 Pa. St. 391; 9 Atl. Bep. 478; 8 Cent Bep. 2i5; People v. St. George's Soc, 28 Mich. 261; ante, § 109. * Commonwealth v. Guardians of the Poor, etc., 6 S. & K. 469. » Bex V. Mayor of Coventry, 2 Salk. 430; Bex v. Mayor of Abington, 2 Salk. 432; Bex o. Mayor of Liverpool, 2 Burr. 731; Green v. African, etc., Soc, 1 S. &B. 254; Commonwealth v. German Soc, 15 Pa. St. 251. * Commonwealth ». Commissioners, etc., 37 Pa. St. 277; Bex. v. Gas- kln, 8 Dnmf . 4 B. 209 ; Society, etc., v. Meyer, 52 Pa. St. 125. » Kehlenbeck v. Jjogemaa, 10 Daly, 447. * Downing v. St. Columbia's Soc, 10 Daly, 262. ' Borto. Mich. Grand Lodge, etc., 9 West. Bep. 559; 33 X. W. Bep. C67 § 442 REMEDIES, PHACTICE, PLEADING AND EVIDENCE. organized bodies by mandamus in aid of a member, is that as corporations they are subject to our judicial oversight to prevent their depriving members of corporate privileges illegally. Where such bodies are not corporations, or where the question presented does not involve tangible and valuable corporate privileges, we cannot interfere in this way. A person who is wronged, if he has a legal cause of action, may pursue it in the appropriate action for dam- ages against the persons who wrong him, but mandamus cannot lie." Where the member of a beneficial associa- tion was entitled to notice before expulsion, but was ex- pelled without notice and in his absence, it was held, in Pennsylvania, that he could recover damages commensurate with the extent of the injury caused by his expulsion.^ And if one excludes a member of a religious society from the proper enjoyment of the property for religious worship and instruction he can maintain an action therefor, and in fixing his damages the injury to his feelings may be con- sidered.^ The right of a member of an incorporated or unincorporated society to bring his action at law for dam- ages sustained because of unlawful expulsion never seems to have been questioned and it is only incidentally in other proceedings that this right has been referred to.* If, how- ever, a member of a benevolent society brings a civil action to recover damages for the loss of his rights and privileges as such member, occasioned by the expulsion, the bringing of such action is a waiver of his rights to a mandamus to restore him- to his rights and privileges of membership.* Ordinarily, one partner cannot sue his copartners at law, but in the case above stated, of a member of a voluntary association suing for damages for unlawful expulsion, the 1 Washington Ben. Soo. v. Bacher, 20 Pa. St. 125. 2 People ». German U. Ev. Ch., 63 N. Y. 103. > Sec cases last cited. 4 State V. Lipa, 28 Ohio St. 66S. 668 RKMKDIKS, PKACTICE, PLEAUIXG AND EVIDENCE. § 443 suit for damages is an election to remain an outsider and the aotiou is maintained on that theory. § 443. Litmitations In Policies on Time Within which Action Must be Brought Thereon : or as to Place of Bringing Suit, or as to Issue of Execution. — The con- tract of insurance being a voluntary one, the insurers have the right to designate the terms upon which they will be responsible for losses. It has accordingly been held that a condition in a policy of insurance that no action against the insurers on the policy shall be sustained unless com- menced within a certain time, as for example, twelve months, after the loss shall have occurred, and that the lapse of this period shall be conclusive evidence against the validity of any claim asserted, if an action for its enforce- ment be subsequently commenced, is valid and is not against the policy of the statute of limitations.^ In some States laws exist specially relating to the time within which ac- » Blddlesbarger v. Hartford Ins. Co., 7 Wall. 886 j Veth v. Clinton F. Ins. Co., 80 Fed. Rep. 668 ; Friezin v. AUemanla F. Ins. Co., Id, 352 ; O'Laughlin v. Union M. L. Ins. Co., 11 Fed. Rep. 280; Peoria Ins. Co. v. Whitehill, 25 111. 466; Williams v. Mut. Ins. Co., 20 Vt. 222; WUson v. .T5tiia Ins. Co., 27 Id. 99; N. W. Ins. Co. v. Phoenix Oil Co., 31 Pa. St. 449; Brown v. Savannah Ins. Co., 24 Ga. 101; Portage Ins. Co. v. West, 6 Ohio St. 602; Amesbury ». Bowditch Ins. Co., 6 Gray, 608; Fullam v, N. Y.Ins. Co., 7Gray,!61; Carters. Humboldt Ins. Co., 12 la. 287; Stouts. City Ins. Co., M. 371;-Ripley v. .Etna Ins. Co., 30 N. Y. 136; 29 Barb. 552; Qoodeno. AmoskeagCo., 20 N. H. 73; Brown v. Roger Williams Ins. Co., 5 R. I. 894; Same v. Same, 7 Id. 801; Ames v. New York Ins. Co., 4 Kern. 252; Roach «. N. Y. & Erie Ins. Co., 80 N, Y. 546; Patrick v. Farmers' Ins. Co., 48 N. H. 621; Kelraw. Home Mut. Ins. Co., 42 Mo. 88; Carraway «. Merchants' M. Ins. Co., 26 La. 298; Merchants M. Ins. Co. ». La Croix, 35 Tex. 249; Cornctt ti. Phcenix Ins. Co., 67 la. 888; Under- writers Agency ». gutherlin, 55 Qa. 266; Wilkinson v. First Nat. Ins. Co., 72 N. Y. 499: Glass v. Walker, 66 Mo. 82; Lasker v. Kenton Ins. Co., 58 N. H. 46'.); F.u-mers', etc., Ins. Co. ». Barr, 94 Pa. St. 845; Universal F. Ins. Co. V. Weiss, 106 Pa. St. 30; Contra, Kagle Ins. Co. v. Lafayette Ins. Co., 9 Ind. 443; Wilson v. State F. Ins. Co., 7 Low. Can. J. 223. And the right is questioned In Westchester F. Ins. Co. v. Dodge, 44 Mich. 420. 669 § 443 REMEDIES, PRACTICE, PLEADING AND EVIDENCE. tions on insurance policies shall be brought. In such case the statute governs as to all policies thereafter issued.* The action mentioned in the condition (which must be com- menced within the twelve months) must be the one which is prosecuted to judgment. The failure of a previous action from any cause cannot alter the case; although such pre- vious action was commenced within the period prescribed.' The time taken in attempting to sue a domestic company in a foreign jurisdiction is not to be deducted from the time allowed by the policy in suing on it ; * and an action is not begun within the limitation unless the court in which pro- ceedings were instituted had jurisdiction.* The limitation concerning the time within which suits must be brought does not apply to actions to recover money paid as pre- miums, but only to actions on the policy,** nor does it apply to actions against the stockholder of a company ,* nor to one who holds the policy as collateral security, if the condition is in the charter of a mutual company ; ' nor to proving up a claim before a master.* And the limitation is not bind- ing when it depends upon a condition which either party to it may defeat," as, for example, that no suit shall be brought until the case has been submitted to arbitration, 1 Dolbier v. Agricultural Ins. Co., 67 Me. 180; Aurora P. Ins. Co. v. Johnson, 46 Ind. 315; Ins. Co. N. A. ■». Brim, 111 Ind. 281; 12 N. Bast. Bep. 315; 9 West. Rep. 830. 2 Biddlesbarger v. Hartford Ins. Co., 7 Wall. 386; O'Langhlin v. Union Cent. L. Ins. Co., 3 McC. 543; 11 Fed. Rep. 280; McFarland r. .ffltna Ins. Co., 6 W. Va. 437; Brown v. Roger Williams Ins. Co., 7 R. I. 801; Arthur ■». Homestead F. Ins. Co., 78 N. Y. 462; Wilson v. .Sitna Ins. Co., 27 Vt. 99. See Madison Ins. Co. v. Fellowes, 1 Dis. 217; aff'd 2 Dis. 128. » Mclntyre v. Michigan State Ins. Co., 52 Mich. 188. * Keystone M. B. Assn. v. Norris, 19 W. N. C. 248. » Waller v. Northern Assn. Co., 6 4 la. 101. « Davis V. Stewart, 26 Ohio St. 643. 1 Smith V. Ahantlc, etc., Ins. Co., 1 Bran. CoU. Cas. 678; 12 Law Bep. 408. ' Pennell v. Lamar Ins. Co., 73 111. 303. » Leach v. Republic F. Ins. Co., 58 N. H. 246. 670 REMEDIES, PRACriCE, PLEADING AND EVIDENCE. § 443 for either party may refuse to so submit. Nor does the con- dition apply when suit is brought on the adjustment of the loss, for the action is on the independent agreement, though it rests in parol. ^ An action originally brought within the prescribed time is not affected by an amendment changing the plaintiff,^ or the defendant, if it appeared,^ for in such case the amendment relates back to the institution of the suit. A suit is copamenced when the precipe is filed and the summons issued.* A stipulation in a policy that no ex- ecution shall issue on a judgment obtained against the com- pany until a certain period after the rendition thereof is valid. Such a provision in the charter of a mutual com- pany was sustained, although the judgment upon which the execution was sought was founded upon a foreign judgment obtained a long time before.* A stipulation or condition in a policy that suit shall be commenced in a certain court has been held to be void as against public policy.* And a con- dition that if the insured is not satisfied with the adjustment, he may bring, or must bring, his suit to a certain court within a certain time, does not apply where the loss was not adjusted.'' Where the policy limited the time of suit to a year after an award should be obtained under its terms, the court intimated, in an action to reform the policy and for a 1 Smith V. Glens FaUs Ins. Co., 62 N. Y. 85 ; ni. M. F. Ins. Co. ». Archdeacon, 82 lU. 236. » Fame Ins. Co. v. Thomas, 10 Bradw. 545; afC'd 108 HI. 91; United States Ins. Co. v. Ludwlg, 108 lU. 514. . 3 Burton r. Buckeye Ins. Co., 26 Ohio St. 467. « Schroeder v. Merchants', etc., Ins. Co , 104 111. 71. « Judkins V. Union Mut. F. Ins. Co., 39 N. H. 172. * Beichard v. Manhattan L. Ins. Co., 31 Mo. 518; Indiana, etc., Ins. Co. V. Routledge, 7 Ind. 25; Nute D.Hamilton, etc., Ins. Co., 6 Gray, 174; Amesbury v. Bovf ditch, etc., Ins. Co., Id. 596; Hall v. People's, etc., Ins. Co., Id. 185. ' Landis v. Home, etc., Ins. Co., 56 Mo. 591; Nevlns v. BocMngham M. F. Ins. Co., 25 N. H. 22 ; Williams v. New England F. Ins. Co., 29 Me. 465; Bartlett v. Union M. L. Ins. Co., 46 Me. 500; Boynton v. Middlesex, etc., Ins. Co., 4 Met. 212. 671 § 444 RBMEDIES, PRACTICE, PLEADING AND KVIDKNCK, recovery thereon as reformed, that it was doubtful whether the limitatioQ applied, except where an award had fixed the amount of the claim.' § 444. When the Statnte of Liimitations Applies. — If no limitation is imposed by the policy the ordinary stat- utes of limitation apply. In a case where no certificate was issued and the right of the beneficiary of a benefit society was defined by the laws of the same it was held that the statute of limitations upon actions upon parol agreements applied.' In Georgia, however, it was held by the Supreme Court, in a case where the defendant was incorporated for insuring lives, and the charter provided that the amount due at a member's death should be paid in a specified way, that the statute of limitations in regard to enforcement of rights accruing to individuals under statutes, acts of incor- poration, or operation of law applied, because the liability was statutory, resting on the defendant's charter.^ Where the existence of a policy was concealed from the insured by the agent of the company for over six years, although he had received it to be delivered to the insured, it was held that the force of the statute of limitations could not be avoided by pleading the fraud, since by so doing the plaintiff would be put in the position of suing on a contract consummated by concealed delivery.* If a policy on the life of the debtor be assigned to the creditor on condition that BO steps be taken to collect the debt during the life of such debtor, the statute of limitations will not commence to run against the debt until the death of the debtor.* A company doing business in a State is considered as fully 1 Hay V. Star F. Ins. Co., 77 N. Y. 235. ' Kauz c. Improved Order, etc., 13 Mo. App. 841. ' Georgia Masonic Ins. Co. v. Davis, 63 Ga. 471. « Morrison 0. Ins. Co., etc. (N. H.), 7 Atl. Kep. 378; 8N. Eng. Bep 160. ^ Damron v. Penn. M. L. Ins. Co., 99 Ind. 478. • 672 KEMCrDieS, PRACTICE, PLEADING AND EVIDENCE. § 445 domiciled there for the purpose of being sued and may rely on the statute of limitations.^ § 445. "Wlien the Ijimltations do Not Attach: Waiver: Excuses lor Ifot Briaging Suit. — The right of a member of a mutual company is not affected by a by-law in force when his policy was obtained, unless it is made a part of the policy.- And if the delay to bring suit within the designated period is a result to which the company mainly contributed Dy holding out hopes of amicable adjustment, it will not be allowed to tuke advantage thereof . The limit- ation of the policy will also be disregarded if insured is prevented from bringing his suit by fraud or the insurer's holding out reasonable hopes of settlement; '^ and the limita- tion may be waived after the action is legally barred.* If within the time limited for suit the insurer promise condi- tionally to pay the amount at a future date, this intervening time is excluded in calculating the period of limitation,' or if the acts and omissions of the company delay the insured in making proofs, tor say five months, suit on the policy being barred a certain time after loss, this period of five months is to be excluded in computing the time within which action must be brought.* When, however, all ne- gotiations were ended, two months before the time limited for suit had elapsed, it was held that no excuse existed jus- tifymg the court in sustaining an action brought six months • Conn. M. L. Ins. Co. v. Dueison, 28 Gratt. 630. ' Mntnal Accident, etc.. Ass. v. Kayser, 14 W. N. C. 86. ' Derrick o. Lamar Ins. Co., 74 111. 404; Little o.Fhasniz Ins. Co., 123 Mass. 389; Home Ins., etc, Co. v. Myer, 93 111. 271; Martin t. State Ins. Co., 44 X.J. L. 485; St. Paul, etc., r. McGregor, 63 Tex. 399; Bish c. Hawkeye Ins. Co., 69 la. 184; Solomon c. Metropolitan Ins. Co., 10 Jones & Sp. 22; Curtis v Home Ins. Co., 1 Biss. 485; Ripley v. Astor Ins. ■Co., 17 How. Pr. 444- Mickey . Burlii^ton Ins. Co., 35 la. 174. • CouTSin V. Penn. Ins. Co., 46 Pa. St. 323. ' Black r. Winnesheik Ins. Co., 31 Wis. 74. • Killips r. Putnam F. Ins. Co., 28 Wis. 472. 43 673 § 445 REMEDIES, PKACTICE, PLEADING AND EVIDENCE. after the limit expired; ^ and mere negotiations are not sufficient to show a waiver of the condition as to time of suit; ^ nor even a promise to pay, if withdrawn four months before time limited for suit elapsed.^ Ignorance of the provision as to limitation in the policy of the time of bring- ing suit is no excuse, although the policy had not been de- livered ; * nor is a mistake in the policy as to the time the risk commenced;' nor representations of an agent, the policy negativing his authority ; ' nor is this condition af- fected by a waiver of other conditions in the policy; ^ nor by the non-receipt of a notice of the disallowance of the claim duly mailed ; * nor by the fact that the beneficiaries are minors ; ' nor is the limitation waived by an offer of compromise ; ^^ nor the failure and neglect of the company to adjust the loss ; ^^ nor a promise of the insurer to write and inform the insured what the company proposed to do.** Whether war is an excuse for not bringing suit is doubtful- The Supreme Court of the United States has held in the affirmative^* but there is authority to the contrary." And so in regard to the absence of the defendant so that process cannot be served upon him. In such a case the Supreme ' Blanks i). Hibernia Ins. Co., 36 La. Ann. 599. 2 Allemania Ins. Co. o. Little, 20 Bradw. 431; Phoenix Ins. Co. «. Leb- Cher, Id. 450. ' Garretson*. Hawkeye Ins. Co., 65 la. 468. * Wilkensen v. First National Ins. Co., 72 N. Y. 499. s Farmers' M. F. Ins. Co. ». Barr, 94 Pa. St 345. • Waynsboro, etc., Ins. Co. v. Conover, 98 Pa. St. 384. ' Universal, etc., Ins. Co. v. Weiss, 106 Pa. St. 20. ' Higgins V. Windsor, etc., Ins. Co., 54 Vt. 270. » O'Laugblin v. Union Central L. Ins. Co., 3 McC. 643; 11 Fed. Kep. 280. '» Davis ». Canada, etc., Ins. Co., 39 Up. Can. Q. B. 452. " Button V. Vermont M. F. Ins. Co., 17 Vt. 369. •2 McFarland v. Peabody Ins. Co., 6 W. Va. 425; Same v. Mtaa, Ins. Co., Id. 437. 1^ Semmes v. Insurance Co., 13 Wall. 158; reversing s. c. 36 Conu. 543. " Plioenix Ins. Co. v. Underwood, 12 Heisk. 424. See ante, § 866. 674 KEMEDIES, PRACTICE, PLEADING AJiD EVIDENCE. § 447 Court of ^lichigan * held that although the first summons was not seryed because of the absence of the defendant, a second summons issued after the limit of time had expired, was in time,' irrespective of the question whether it was a continuation of the first summons.^ § 446. When Time of !Liinltation Begins to Ban. — A question, arising more frequently in cases of fire than of life insurance is when does the time within which a suit must be brought begiiv to run. The preponderance of authority is to the effect that it dates from the time when an action might first be brought, as, when the loss is payable so many days after proof of loss, from the lapse of this period after the submission of proofs or the adjustment. And this, although by the terms of the contract suit must be brought so many months after the loss should occur.* If proofs of loss are waived, the time of limitation dates from the expiration of the same stipulated number of days after such waiver as after proofs.* § 447. Condition of Ijimitation, how Taken Advan- tage of. — The proper practice is to plead the contract limitation, and not to attempt to take advantage of it by » Feoria, etc., Ins. Co. v. Hall, 12 Mich. 202. * Eetchnm v. Prot. Ins. Co., 1 Allen (N. B.)", 136, seems opposed to this view. ' EUis V. CouncU Bluff Ins. Co., 64 la. 507; Chandlers. St. Paul, etc, Ins. Co., 21 Minn. 85; Hay o. Star F. Ins. Co., 77 N. Y. 235; Mayor, etc., t. Hamilton Ins. Co., 39 N. Y. 46; Ames v. N. Y. Union Ins. Co., 14 N. Y. 2.53; Steeuo. Niagara F. Ins. Co., 89 N. Y. 315; Mat., etc., Assn. v. Kayser, 14 W. N. C. 86; Barber c. F. & M. Ins. Co., etc., 16 W. Va. 658; Spare v. Home Mnt. Ins. Co., 9 Sawy. 142; 17 Fed. Eep. 568; Friezen v. Allemania Ins. Co., 30 Fed. Rep. 352; MUler v. Hartford F. Ins. Co., 70 la. 704; 29 N. W. Rep. 411; Oweno. Howard Ins. Co., 9 Ky. L. Rep. 147. To the contrary are. Chambers v. Atlas Ins. Co., 61 Conn. 17; Humboldt Ins. Co. V. Johnson, 91 HI. 92; 1 Bradw. 309. * Eggleston V. CouncU Bluff -Ins. Co., 65 la. 308. 675 § 448 REMEDIES, PKACTICE, PLEADING AND EVIDENCE. demurrer,' and if the suit is not commenced within the stipiilated time, the fact is sufficiently pleaded by an alle- gation that the conditions of the policy have not been complied with.^ If the answer, after setting forth the condi- tions of the policy, avers that more than the stipulated number of months have elapsed since the making of any claim for loss, it will be sufficient to enable defendant to avail itself of the defense that the siiit was not brought with- in the prescribed time.'' The objection that the action was not brought in time cannot be raised by plea m abate- ment; * nor can it be set up, if. having been interposed by plea, a demurrer has been sustained to it; ' nor after verdict." § 448. Condition of Liimitation on Time of Bringing Suit not Usual in Lidw. 309. ■ Caldwell v. Stadacona, etc., Ins. Co., 3 Buss. & 6. (Nova S.) 218. 676 REMEDIES, PRACTICE, PLEADING AND EVIDENCE. § 450 against the insurer. If by a strict construction the rights of the assured can be preserved the courts will adopt this course. § 449. Conditions Concerning Arbitration Seldom Found in Liife Insurance Policies. — It is usual in policies of fire insurance to insert conditions and provisions in re- gard to arbitration if any loss arises. It has often been a disputed question whether such provisions were valid and binding, and numerous (Jecisions have been made construing these stipulations. Such clauses in hfe policies are com- paratively infrequent, although they are found in some con- tracts. With benefit societies it is not uncommon for the laws of the society to provide for a tribunal of its own to settle differences between its members and determine its liability in regard to claims. It will not be necessary for us to enter into an examination of the cases that have been decided involving the validity of arbitration clauses in fire policies except so far as they relate indirectly to the rights of those who belong to benefit societies. § 450. Agreements to Refer to Future Arbitration, When and to What £xtent Valid. — It is a settled princi- ple of law that parties cannot by contract oust the courts of their jurisdiction and agreements to refer to future arbitra- tion will not be enforced in equity and will not be sustained as a bar to an action at law or a suit in equity. " The rea- son generally given," says the Supreme Court of Massa- chusetts,' " is, that such an agreement affects the remedy, and, if enforced, would oust the courts of their jurisdiction. Another reason is, that a submission to arbitration is a power, and revocable at any time before it is fully executed by an award made. A party will not be compelled to enter into a submission which he can forthwith revoke ; and the ' Keede. Washington Ins. Co., 138 Mass. 575. 677 § 450 REMEDIES, PRACTICE, FLBADINQ AND EVIDENCE. bringing of an action amounts to a revocation. Neither of these reasons seems to apply to an action upon a promise to pay an award. Such a promise is conditional ' upon the making of an award, and the arbitration is a condition to the right of action." It is well settled, that an agreement in a policy to refer all matters of dispute to arbitrators is void and ineffectual.^ But it is also a well settled principle of law that, although parties cannot by contract oust the courts of their jurisdiction, any person may covenant that no right of action shall accrue until a third person has decided on any difference that may arise between himself and the other party to the contract.* A condition in any contract to re- fer any question which may arise out of it to arbitration, will be, if so stated, a condition precedent to the right to sue on the contract, but unless the condition expressly stipa- lates that, until arbitration be had, no action shall be brought, its performance is not precedent to the right to sue on the contract.* The correct view is thus stated by Lord Cole- ridge in Dawson v. Fitzgerald * as having been laid down in a previous case:* " If two persons, whether in the same or in a different deed from that which creates the liability agree to refer the matter upon which the liability arises, to arbitration, that agreement does not take away the right of action. But if the original agreement is not simply to pay a sum of money, but that a sum of money shall be paid if something else happens, and that something else is that a 1 Stephenson «. FiscataquaF. & M. Ins. Co., 64 Me. 70; Trottc. City Ins. Co., 1 Cliff. 439; Cobb v. New England, etc., Ins. Co., 6 Gray, 192; Insurance Co. v. Morse. 20 Wall. 445. 2 Scott V. Avery, 5 H. of L. Cas. 811; 25 L. J. Ex. 308; 2 Jur. (n. s.) 816; affirming 8 Ex. 487; 22 L. J. Ex. 287; 17 Jur. 810; Mentz ». Ar- menia F. Ins. Co., 79 Pa. St. 478. » Koperi;. London, 1 El. & El. 825; 28 L. J. Q. B. 260; 5 Jnr. (n. e.) 491; 7 W. K. 441; Elliotts. Boyal Exchange, etc., 2 L. R. Ex. 237; 36 L. J. Ex. 129; 16 L. T. 399; 16 VT. R. 907. * 1 Ex. D. 267; 46 L. J. Ex. 893; 35 L. T. 220; 24 W. B. 773. * Elliott e. Royal Exchange, supra, 678 REMEDIES, PRACTICE, PLEADIXG AND EVIDENCE. § 450 third person shall settle the amount, then no cause of ac- tion arises until the third person has so assessed the sum. For to say the contrary would be to give the party a differ- ent measm'e or rate of compensation from that for which he has bargained." ^ In insurance, agreements to submit matters in controversy to arbitration are generally invalid when they go to the root of the controversy and involve questions of law as well as fact,^ or when they determine the liability of the company. But if the matters to be sub- mitted are incidental, special, or collateral to the main question or liability, as, for example, the amount of the loss or manner of its payment, then the agreement to refer will be upheld. The subject is not without difficulty and decis- ions are not always in harmony, but the rule is practically as stated. As said before, the question arises more fre- quently in fire insurance cases, but is likely to occur in the experience of life insurance companies and benefit societies. If the promise to pay is on condition that the amount be as- certained by arbitrators, then the arbitration is a condition precedent to recovery, and performance or waiver must be shown. We refer below to the principal cases where the point has been raised and the language of various stipula- tions construed. In some a condition precedent has been held to exist and be valid, while in others the agreement has been considered ineffectual.' The Supreme Court of the ^ Wood «. Humphrey, 114 Mass. 185; Bowe r. WiUiams, 97 Mass. 16S. > Alexander v. CampbeU, 41 L. J. Ch. 478; 37 L. T. 25. " In the following cases the agreement to refer was upheld as a con- dition precedent to suit: Old Saucelito, etc., Co. v. Commercial Union Ass. Co., 66 Cal. 253; Adams v. South British, etc., Co. (Cal.), llPac. Eep. 627; Carroll v. Girard F. Ins. Co. (Cal.), 13 Pac. Rep. 863; Gaucher. London, etc., Ins. Co., 4 Woods, 102; 10 Fed. Eep. 347; Davenports, Long Island Ins. Co., 10 Daly, 635; Cin. Coffin Co. v. Home Ins. Co., 7 Cin. L. B. 342; Flaherty v. Gewaania Ins. Co., 1 W. N. C. 352; CaMn v. Provincial Ins. Co., 27 Up. Can. Q. B. 403; ilclnnes v. Western C. N. Western M. Ben. Assn., 47 Mich. 424. * Miners. Trustees, etc. (Mich.), 31 N W. Rep. 763; 8 West. Bep. 139. ' Seitzinger v. New Era L. Assn., ill Pa. St. 557; McKnight v. Mnt. L. Assn., 16 W. N. C. 400. 685 454 REMEDIES, PEACTIOE, PLEADING AND EVIDENCE. into the treasury of a benefit society by its members be- come the property of the society and the members have no further claim or right to it; * and a member of the associa- tion, having no interest in the fund, cannot maintain a suit to enjoin its payment.^ § 454. Declaration or Petition. — The Supreme Court of Alabama thus states the general rule in regard to a petition or declaration on an insurance policy.' " Inde- pendent of statutory provisions, the rules of pleading are the same in their application to the contract of insurance as to other contracts. The contract or policy of insurance must be declared on, in hoec verba, or according to its legal effect; the plaintiff's interest in the subject of insur- ance ; the payment of the premium ; the inception of the risk; the performance of any precedent condition or war- ranty contained in the policy, and the loss, or happening of the event, on which within the terms and meaning of the policy the liability of the insurer attaches, must be alleged.* The general rule applicable to all executory contracts is, that if the defendant's performance depended upon a con- dition precedent, the plaintiff must aver the fulfillment of such condition, whether it is affirmative or negative, or to be performed or observed by him, or the defendant, or a mere stranger to the contract, or must show an excuse for non-performance. K non-performance is excused, the matter of excuse must be distinctly averred.' These rules of pleading at common law have been modified, and to some extent abrogated by the statutory provisions to 1 Swett V. Citizens' M. Relief Soc, 78 Me. 541; York County Mut. Aid Ass.D. Myers, 11 W.N. C. 541; Brown v. Orr, 112 Pa. St. 233. ' Elsey V. Odd-feUows M. R. Soc, 142 Mass. 224; 7 ST. East. Sep. 844; 2 N. Bng. Bep. 667. ' Brooklyn L. Ins. Co. «. Bledsoe, 62 Ala. 638 * 2Greenl. Ev.,§376, » 1 Cliitty PI. 320-26. 686 KEMEDIKS, PRACTICE, PLEADING AND EVIDENCE. § 454 which we have referred. * • * A mere statement of the contract or policy, followed by the general averment that the plaintiff had complied with aU its provisions on on his part, and that the defendant had not in a specified matter performed it, is sufficient."^ A declaration or peti- tion is insufficient unless it alleges that the notice and proofs of loss required by the policy have been given, or compli- ance with this condition waived. The general averment that plaintiff has " fulfilled all the conditions " of the policy is not an averment that proofs of loss had been made in a certain way and within a certain time.^ Matter in defeaz- ance of the plaintiff's action need not be stated in the declaration, and wherever there is a circumstance, the omission of which is to defeat the plaintiff's right of action, prima facie well founded, whether called by the name of a proviso, or a condition subsequent, it must in its nature be a matter of defense, and ought to be shown in the pleading, by the opposite party. It is sufficient to state in the declaration those parts of the contract whereof a breach is complained of, or, in other words, to show so much of the terms beneficial to the plaintiff in a contract as constitutes the point for the failure of which he sues ; it is not necessary or proper to set out in the declaration other parts not qualifjring or varying in any respect the material parts above mentioned. It is not necessary there- ' Richardson v. North Missonri Ins. Co., 67 Mo. 413; Bamberger «. Commercial Credit, etc., Co., 15 C. B. 676; 1 Jur. (n. s.) 500; Mass. Mut. L. Ins. Co. ti. Kellogg, 82 HI. 614; American Ins. Co. v. Leonard, 80 Ind. 272; iEtna Ins. Co. v. Kittles, 81 Ind. 96; Lingenfelter c. Phoenix Ins. Co., 19 Mo. App. 252; Daniels v. Andes Ins. Co., 2 Mont. 78; Tripp ». Vermont L. Ins. Co., 55 Vt. 100; Scheiderer e. Travelers Ins. Co., 5& Wis 13; Continental L. Ins. Co. v. Houser, 89 Ind. 258. * Edgely v. FariiK-r's Ins. Co., 43 la. 537 ; Fayerweather v. Phoenix Ins. Co., 7N. Y. St. R. 25; Dolbier v. Agricnltnral Ins. Co., 67 Me. 180; Royal Ins. Co.^. Smith, 8 Ky. Law R. 521; Crescent Ins. Co. v. Camp, 64 Tex. 521; Qnarrier o. Peabody Ins.^Co., 10 W. Va. 507. But seeScbeld- erw 0. Travelers' Ins. Co., 5S Wis. 13; Schobacker r. Germantown.etc, Ins Co., 59 Id. 86; Snn Mut. Ins. Co. v. HoUand, 2 Wills. (Tex.) 391. 687 § 454 REMEOIES, PRACTICE, PLEADING AND EVIDENCE. fore for a declaration to negative matters of defense.' In a suit on a policy of life insurance, procured by the insured for the benefit of another, it is not necessary that the dec- laration 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 case the plaintiff must aver in his declaration on the policy that he had an insurable interest in the life assured and prove the same aflSrmatively as a part of his case.* The mere statement that plaintiff had an insurable interest is a conclusion of law ; facts must be stated from which, as a matter of law, the court can infer the existence of such an interest.* And so in an action against a benefit society to recover benefits it is not sufficient to allege that there was a " rule" whereby plaintiff was entitled, etc. The rule or its substance must be stated.* And in an action against a benefit society to recover a balance alleged to due during the plaintiff's sickness at the rate of three dollars per week, the mere statement that such an amount is " the sum paid to the sick of said society " is insufficient and states no cause of action. In such case the plaintiff must state how the obligation to pay this money arises, what the rules and reg- ulations in regard to beneficiaries are, and that he has com- 1 Simmons v. Insurance Co., 8 W. Va. 474; Pierce v. Charter OakL. Ins. Co., 138 Mass. 151; East Texas F. Ins. Co. ». Dyches, 56 Tex. 565; Phoenix Ins. Co. v. Moog, 78 Ala. 284 ; Clay F., etc., Ins. Co. v. Wuster- hausen, 75 111. 285; Forbes v. Am. M. L. Ins. Co., 16 Gray, 249; Louns- bury V. Protection Ins. Co., 8 Conn. 469; Conway F. Ins. Co. ». Sewall, 54 Me. 352; Troy F. Ins. Co. v. Carpenter, 4 Wis. 20. 2 Guardian M. L. Ins. Co. v. Hogan, 80 111. 35; Mass.Mut. L.Ins. Co. V. Kellogg, 82 111. 614; Euse v. .Mut. Ben. L. Ins. Co., 23 N. T. 616; 24 N. Y. 653; s. c. 8 Ga. 534; Fowler v. N. Y. Indemnity Ins. Co., 26 N. Y. 422; Chrisman v. State Ins. Co. (Oreg), 18 Pac. Bep. 466. But see contra. Tabor v. Goss, etc., Mfg. Co. (Colo.), 18 Pac. Rep. 537. » Elkhart Mut. Aid, etc , Assn. b. Houghtofi, 98 Ind. 149; Franklin L. Ins. Co. V. Sefton, 53 Ind. 380. " Irish Catholic, etc., v. O'Shaughnessy, 76 Ind. 191. 688 REMEDIES, PRACTICE, PLEADING AND EVIDENCE. § 455 plied with such rules.^ No principle is better settled, than that a statement of demand which does not state facts enough to establish the liability of the party sued, without the necessity of supplying other facts by proof, is radically defective and will not support a judgment.^ It is not nec- cessary for the plaintiff, although the application, by the terms of the policy, is made a part of the contract and the truth of the statements made therein warranted, to set out in his complaint or declaration the application, nor in the first instance to prove performance of any of its conditions, or the truth of the statements contained therein, because the agreement or warranties contained in such application are not conditions precedent, but qualifications of the liability of the insurer growing out of independent cove- nants and in the nature of conditions subsequent, the breach of which are matters of defense for the insurer to allege and prove .^ In California and elsewhere it has been held to the contrary.* § 455. Pleas, or Answers, Replications. — The same rules apply to pleas, answers and replications in actions on insurance policies as in those on other written instruments. The books are full of instances of defective pleadings which 1 Beneficial Society r. White, 30 N. J. L. 313. ' Beneficial Society, etc., v. White, svpra. * Redman v. ^tna Ins. Co., 49 Wis. 431; May ». Bnckeye Ins. Co., 25 Wis. 291, where it i8 said that it would be intolerable, in an action on an insurance policy, to require the plaintiff to prove affirmatively in the first instance the truth of every statement usually contained in an application for insurance ; Mut. Ben. L. Ins. Co. v. Cannon, 48 Ind. 264; Common- wealth Ins. Co. V. Monninger, 18 Ind. 362; Continental L. Ins. Co. o. Kessler, 84 Ind. 310; Forbes ». Am. Mut. L. Ins. Co., 15 Gray, 249; Guardian M. !•. Ins. Co. v. Hogan, 80 111. 35: Penn. Mut. L. Ins. ■». Wller, 100 Ind. 92; Insurance Co. v. McGookey, 33 Ohio St. 555; Louns- buiyti. Protection Ins. Co., 8 Conn. 459; Herron v. Peoria, etc., Ins. Co., 28 m. 235. * Bidwell V. Insurance Co., 3 Sawy. 261 ; Gilmore v. Lycoming F. Ins. Co., 56 Cal., 123 ; Bobblttw. Liverpool, L. & G. Ins. Co., 66 N. C. 70. U 689 § 456 BEHEDIES, PRACTICE, FLEADINO AND EVTOENCE. wei'e held so because the fundamental principles of pleading were disregarded. It is not necessary to particularly refer to these cases, for to do so would be unprofitable. We shall mention but a few. A general replication of waiver is bad unless it avers the facts which constitute waiver with rea- sonable certainty ; ^ facts, not conclusions of law, must be averred.^ If an answer set up false answers to questions in the application it must particularize them.^ All matters which show the transaction to be void, or voidable in point of law, on the ground of fraud or otherwise, should be pleaded specially ; ^ such as that the policy is a wager pol- icy ; ^ or, in some States, the breach of the conditions the defense relies on.' § 456. Evidence in Actions on Insurance Contracts. — It is not within the scope of this work to review, in con- nection with the roported decisions of the courts, the law of evidence in actions upon life insurance policies. To do this would require a treatise of itself. In general it may be stated that the same rules of evidence govern in actions upon policies of insurance as upon other instrumente of writing. The fundamental principles which lie at the foun- dation of the law of evidence apply to all cases alike and the subject-matter of action is not material. In insurance cases these principles have been reajffirmed, and, though at times courts have been accused of departure from them, ' Preston v. Travelers' Ins. Co., 58 N. H. 76; Texas Banking, etc., Co. V. Hutchins, 53 Tex. 61. ! National Benefit Assn. v. Bowman, 110 Ind. 355; Gray e. National Ben. Assn., HI Ind. 531; 11 N. East. Rep. 477; 9 West. Bep. 289; Frank- lin L. Ins. Co. V. Sefton, 53 Ind. 380; Pcnn. M. L. Ins. Co. v. Wller, 100 Ind. 92. 3 Stndwell r. Charter Oak Ii. Ids. Co., 17 Hun, 602. < Theodore 0. New Orleans, etc, Ins. Assn., 28 La. Ann. 917; Meister V. Merchants' M. Ins. Co., Manning's Cas. (La.) Iii9. » Goodwin c. Mass. M. L. Ins. Co., 73 N. T 480. s Bittinger v. Providence, etc., Ins. Co., 24 Fed. Rep. 549. 690 REMEDIES, PRACTICE, PLEADIXG AND EVIDENCE. § 457 under the supposed pressure of the equities of the case or public sentiment, it will be found that if this has been seemingly done it has been to give effect to great principles of justice without too strict a regard to mere technicalities. We shall briefly refer to some of the leading cases bearino- upon the special characteristics of insurance contracts and the evidence permissible in actions for their enforcement. § 457. Presumptions. — The following presumptions^ among others, have recqiived Judicial sanction: In an action to determine the legality of the proceedings by which a member has been expelled from a benefit society, every presumption is in favor of the fairness of the expulsion ; * in the absence of proof it will be presumed that the person who signed an application for insurance made the repre- sentations contained therein, and knew and indorsed its contents.^ Nothing appearing to the contrary, the courts of one State will presume that the common law is in force in another State ; * and that the law of another State is like that of the forum ; * and that acts criminal by the common law, and the laws of all civilized countries, are criminal by the laws of the States of this Union,* and that the company has knowledge of the habit of a local agent as to collection of premiums ; f and that powers of agents are co-extensive with the business entrusted to them, and that a fact con- nected with the approval of an assignment of a policy has been communicated to the company in the due course of 1 Bachmann v. New Yorker, etc., Bond, 64 How. Pr. 442; 12 Abb. N. C. 64. » Hartford L. & A. Ins. Co. v. Gray, 80 lU. 28; 91 HI. 169; Fletcher v. New York L. Ins. Co., 3 McC. 603; 11 Fed. Bep. 377; N. Y. L. Ins. Co. ». Fletcher, 117 U. S. 619. * Sapreme Cooncil, etc., v. Garrlgas, 104 Ind. 133. * Cannon v. Northwestern M. L. Ins. Co., 29 Hun, 470; Neese «. Farm- ers' Ins. Co., 55 Xa. 604. » ClufE t>. Mot. Ben. L. Ins. Co., 13 Allen, 308. * Mound City M. L. Ins. Co. t». Twining, 19 Kan. 349. 691 § 458 REMEDIES, PBACTICE, PLEADING AND EVIDENCB, business.^ If it be shown that a person whose life is in- sured was. intemperate after the insurance was. effected the presumption is that he became so thereafter,^ and if a member of an order be shown to be in good standing that he continues so ; ^ and that every man is sane, a presumption not changed by the fact of suicide.* The presumption that a sane man found dead has not committed suicide does not apply when an insane man is so found; * and that one who violently attacked the wife of another knew that her hus- band would resist the assault with force. That the assailant ' was intoxicated does not change the presumption.' There is no presumption that, if in the application no answer ap- pears to have been given to a question asked by the insurer, it was answered in the negative.' § 458. Admissibility of Parol Evidence to Explain or Modify Answers of Assured in the Application. — One of the most important questions in insurance law is the extent to which parol testimony is admissible to explain or modify the answers of the assured in the application, which is gen- erally referred to in the policy and made a warranty. The stipulation often also contained in the policy that the agent procuring the insurance shall be taken to be the agent of the assured and not of the company has added a new com- plication. By the carelessness of insurance agents or their design, caused by anxiety to effect the insurance, false answers were often written in the application, which oper- ated when a loss occurred to defeat the claim and frequently 1 Breckenridge v. Am. Central Ins. Co., 87 Mo. 62. ' Gartside v. Conn. M. L. Ins. Co., 8 Mo. App. 592. « Mulroy v. Knights of Honor, 28 Mo. App. 463; Ziegler «. Mnt. Aid Soc , 1 McGloin (La.), 284; Supreme Lodge K. of H. v. Johnson, 78 Ind. 110. • Weed V. Mat. Ben. L. Ins. Co., 70 N. J. 661 ; 9 Jones & Sp. 476. • Germain u. Brooklyn L. Ins. Co., 26 Hun, 604. • Bloom V. Franklin L. Ins. Co., 97 Ind. 478. I Queen's Ins. Co. v. Legare, Ramsay's App. Cas. (Low. Can.) 369. 692 REMEDIES, PRACTICE, PLEADING AND EVIDENCE. § 458 in a miscarriage of justice. The courts were at first dis- posed to strictly apply the rule that parol evidence is never admissible to explain or modify the terms of a written con- tract. The hardships that frequently resulted and possibly the demands of public sentiment caused the application in these cases of the doctrine of equitable estoppel, or that the assured might prove by parol a state of facts which would preclude the company from insisting upon the for- feiture for breach of warranty. It is now well settled by a preponderaiice of authority that the assured may show by parol that, without his fault, the answers to questions in the application were not written by him or by his author- ity, and that he did not know its contents when he signed it; ^ or that the false statement was made in the application through the fault of insurer's agent; ^ as where true answers were given to the medical examiner of the company, who, by its rules, was required to write down the answers him- self and he wrote them incorrectly.^ The Supreme Court of the United States thus states this doctrine: * " This princi- ple does not admit oral testimony to vary or contradict that which is in writing, but it goes upon the idea that the writ- ing offered in evidence was not the instrument of the party whose name is signed to it ; that it was procured under such circumstances by the other side as estops that side from 1 Hanson i;. Milwaukee, etc., Ins. Co., 45 Wis. 321; Continental Ins. Co. V. Pierce (Kan.), 18 Pac. Rep. 291; New Jersey M. L. Ins. Co. o. Baker, 94 U. S. 610; Lueders v. Hartford L. & A. Ins. Co., 4 McC. 149; 12 Fed. Rep. 465; Grattan v. Metropolitan L. Ins. Co., 92 N. Y. 274; 28 Hnn, 430; Menks. Home Mnt. Ins. Co. (Cal,), 14 Pac. Rep. 837; 18 ia. 117. 2 Ring V. Windsor, etc., Ins. Co., 51 Vt. 663; McArthur v. Home L. Ins. Assn. (la.), 35 N. W. Rep. 430; Manhattan F. Ins. Co. v. Weill, 28 Gratt. 389; Smith v. Agricultural Ins. Co., 6 N. Y. St. R. 127; Brown v. Metropolitan L. Ins. Co. (Mich.), 32 N. W. Rep. 610; Hartford L. & A. Ins. Co. V. Gray, 80 111. 28; Eivara v. Queen's Ins. Co., 62 Miss. 720; Kausal v. Minnesota, etc., Assn., 31 Minu. 17; Planters' Ins. Co. v. Sor- rels, 1 Baxt. 352; Texas Banking & Ins. Co. v. Stone, 49 Tex. 4. » Grattan ». Metropolitan L. Ins. Co., 80 N. Y. 281. * Insurance Company v. Wilkinson, 13 Wall. 222. 693 § 458 BEHEDIES, FBACnCi:, PLEADIKO AND EVIDENCE. using it or relying on its contents ; not that it may be con- tradicted by oral testimony, but that it may be shown by such testimony that it cannot be lawfully used against the party whose name is signed to it." ^ This doctrine has, however, been received in some quarters with decided dis- "apprsval and condemned as being an innovation upon the established rules of the common law. The Court of Errors and Appeals of New Jersey has perhaps most strongly op- posed the rule and, after a review of the authorities,* says that the decided weight of authority is against the admission of parol evidence as a clear violation of the salutary rule of ,law, that all prior statements are merged in the concluded contract, and that a contract put in writing cannot be added to or altered by parol testimony.' In the latest ruling of the Supreme Court of the United States * on this question it was disposed to lay stress upon the condition that before an estoppel can be held the assured must be shown to have not been in fault or to have neglected plain means by which 1 The following authorities are cited by the court or sustain its view: Plumb v. Cattaraugus Ins. Co., 18 N. Y. 392; 72 Am. Dec. 526; Kowleyc. Empire Ins. Co., 36 N. Y. 550; Woodbury Savings Bank v. Charter Oak Ins. Co., 31 Conn. 517; Combs v. Hannibal Savings & Ins. Co., 43 Mo. 148; Planters' Ins. Co. v. Myers, 55 Miss. 479; 30 Am. Eep. 521; Com- mercial Ins. Co. V. Ives, 56 lU. 402; Clark ». Union M. F. Ins. Co., 40 N. H. 333; 77 Am. Dec. 721, and valuable note v^here the anthorities are collected. See ante, § 152; § 221, et seq., and § 428. 2 Franklin F. Ins. Co. v. Martin, 40 N. J. L. 568. » The court cites: Dewees v. Manhattan Ins. Co., 35 N. J. L. 366; Columbia Ins. Co. v. Cooper, 50 Pa. St. 331 ; Smith v. Cash Mut. Ins. Co., 24 Pa. St. 320; Loehner v. Home Mut. Ins. Co., 17 Mo. 247; Hough v. City F. Ins. Co., 29 Conn. 10; Barrett v. Union M. Ins. Co., 7 Cush. 175; LoweU V. Middlesex Ins. Co., 8 Id. 127; Jenkins v. Quincy Mut. Ins. Co., 7 Gray, 370; Kibbe v. Hamilton M. Ins. Co., 11 Id. 163; Jennings v. Chenango Co. Ins. Co., 2 Denio, 75; Bohrbach v. Germania Ins. Co., 62 N. Y. 47; Sheldon v. Hartford F. Ins. Co., 22 Conn. 235. See also Southern M. Ins. Co. v. Yates, 28 Cratt. 58S. It is culpable negligence to sign an application without reading it. Susquehanna M. F. Ins. Co. V. Swank, 102 Pa. St. 17; Byan v. World M. L. Ins. Co., 41 Conn. 168. * New York L. Ins. Co. v. Fletcher, 117 U. S. 519. 694 REMEDIES, PBACTICE, PLEADING AND EVIDENCE. § 560 he might have knovvn of the mistake in the application, as where a copy of the application was attached to the policy.^ § 459. Declarations of Agent. — The general principle applies in insurance as in other cases that the declarations of an agent to be admissible in evidence must have been made in the line of his agency and in the course of the dis- charge of the duty he owes to his principal.^ § 460. Declarations of Assured. — Declarations made by insured concerning his health after the policy has been issued on his life payable to a third party, as, for example, to his wife, are not competent in an action brought by such payee on the policy.^ And so, in an action by the assignee or beneficiary of the policy, declarations and admissions of the assured made at a time prior to and remote from the application, and disconnected with any act or fact showing his condition of health, are incompetent for the purpose of contradicting the statements made in the application,* but, if it appear otherwise than by the declarations of assured, that such statements were untrue, then his prior declarations 1 See ante, §§ 152-156 Inc. and § 221. * Brink v. Merchants', etc., Ins. Co., 49 Vt. 443; Dean e. .Stna L. Ins. Co., 62 N. T., reversing 2 Hun, 358; Cprenant M. Ben. Assn. v. Conway, 10 Bradw. 348; Walker v. Farmers' Ins. Co., 51 la. 679; Northwestern M. L. Ins. Co. V. Both, 87 Pa. St 409: Scott v. Home Ins. Co., 53 Wis. 238; Zlelke V. London Ass. Corp., 64 Wis. 442; Phoenix Ins. Co. v. La Pointe, 118 111. 384; United Bretliren M. A. Soc. v. McDermond, 12 W. N. C. 73; Mars V. Virginia Home Ins. Co., 17 S. C. 514; Smith v. National L. Ins. Co., 103 Pa. St. 177. 3 McGlnley v. United States Ins. Co., 8 Daly, 390; Swartzbach v. Ohio Valley, etc.. Union, 25 W. Va. 622; American Fop. L. Ins. Co. «. Day, 39N. J. L. 89; Grangers' L. Ins. Co. o. Brown, 57 Miss. 308; Mobile L. Ins. Co. c. Morris, 3 Lea, 101; Valley Mut. L. Assn. o. Tee- wait 79 Va. 421; John Hancock Mnt. L. Ins. Co. v. Daly, 65 Ind. 6; McDermott v. Centennial M. L. Ass., 24 Mo. App. 73. * Edington v. M. L. Ins. Co., 67 N. Y. 185 ; 5 Hun, 1 ; Singleton v. St. Louis M. L. Ins. Co., 66 Mo. 63; Penn M. L. Ins. Co. v. Wiler, 100 Ind 92; Union Central L. Ins. Co. v. Cheever, 36 Ohio St. 201. 695 § 361 REMEDIES, FBACTICE, FLEADIKO AlfD EVIDENCE. are admissible to show knowledge on his part of the falsity of such answers; * and statements Inade by the assured shortly prior to his application concerning his health, in connection with facts exhibiting his then state of health, are probably admissible upon the question of the truthfulness of the answers made by him in such ap[jlication.^ In an action by the beneficiary, upon a certificate issued to a member of a benefit society, neither an application of the member for reinstatement, nor statements made by him as to the cause of his suspension, are competent evidence to prove the fact of his suspension ; ' nor indeed are any admissions of his subsequent to his becoming a member competent against his beneficiary.* And if there has been no misrepresenta- tion as lo the health of assured, evidence as to what it was after the contract was consummated and of the disease of which he died, is immaterial.^ § 461. Evidence of Physician as to Knowledire Ac- quired in Course of His Employment. — In most, if not all the States, statutes exist providing that physicians shall not be competent witnesses as to matters communicated to them, as such, by patients, in the course of their professional business, or as to advice given in such cases. These stat- 1 Edington v. M. L. Ins. Co., supra. 2 swift V. Mass. M. L. Ins. Co., 63 N. Y. 186; Kelsey v. Universal Ii. Ins. Co., 35 Conn. 223; Ayeson v. Kinnaird, 6 East, 188. But see Washington L. Ins. Co. v. Haney, 10 Kan. 625; MuUiner v. Guardian H. L. Ins. Co., 1 Thomp. & C. 448 ; Fraternal Mat. L. Ins. Co. v. Apple- gate, 7 Ohio St. 292. 3 Lazenskyo. Supreme Lodge E. of H., 31 Fed. Bep. 592; Dodge o. Freedman's Co., 93 CT. S. 379. • Supreme Lodge E. of. P. e. Schmidt, 98 Ind. 374, citing Fraternal M. L. Ins. Co. «. Applegate, 7 Ohio St. 292; Southern L. Ins. Co. v. Booker, 9 Heisk. 606; Washington L. Ins. Co. e. Haney, 10 Kan. S2S; Bawls V. Am. Mut. L. Ins. Co., 27 N. T. 282; Mulliner v. Guardian M. L. Ins. Co., 1 Thomp. & C. 448; Harley v. Heist, 86 Ind. 196; 44 Am. Bep. 28S. * Morrison ». Wisconsin Odd-feUows' M. L. Ins. Co., 59 Wis. 162. 696 REMEDIES, PRACTICE, PLEADING AKD EVIDENCE. § 461 utes have been liberally construed by the courts and it has been generally, and without known exception, held by them that in an action upon a life policy a physician may not tes- tify to what he learned of the ailments of the insured, if he was his patient, either by examination, or observation, or oral communication.^ Information obtained which was not necessary to enable the physician to do what was re- quired, or before the assured became his patient, is not privileged.* These State statutes are binding on the Fed- eral courts.^ It is not a ^ai^er of the privilege for the as- sured to give in his application the name and residence of his family physician ; * nor is it a waiver of the right to object that the beneficiary has offered in evidence facts learned in a professional capacity by another physician; ® nor does it alter the rule that the physician and the person he examined had never met previous to the examination, and no prescrip- tion or advice was given, and the examination was made at the physician's office and not paid for by the person exam- ined.* But it has been held^ that the provisions of the Missouri statute prohibiting a physician from testifying to any information he may have acquired from any patient, while visiting him professionally, may be waived by the patient, and, when waived by a clause in an application for life insurance, such waiver is binding on the beneficiary. 1 Masonic M. Ben. Assn. v. Beck, 77 Ind. 203; Excelsior M. A. Assn. c. Riddle, 91 Ind. 84 ; Gartside v. Conn. M. L. Ins. Co., 76 Mo. 446; Ed- ingtono. Mut. L. Ins. Co., 67 N. Y. 185; 5 Hnn, 1; Dilleber v. Home L. Ins. Co., 69 N. T. 256; 25 Am. Eep. 182; Grattan v. Metropolitan L. Ins. Co., 80 N. Y. 281; 36 Am. Eep. 617; Grattan v. Metropolitan L. Ins. Co., 92 N. Y. 274; 28 Hnn, 430; Grattan v. National L. Ins. Co., 15 Hnn, 74. Bnt see Brown v. Metropolitan L. Ins. Co. (Mich.), 32 N. W. Eep. 610; 8 West. Eep. 775. » Edington v. .aitna L. Ins. Co., 77 N. Y. 564, reversing 13 Hnn, 643. » Conn. Mnt. !•. Ins. Co. v. Union Trust Co.', 112 U. S. 250 * Masonic M. Ben. Ass. v. Beck, 77 Ind. 203. » Penn M. L. Ins. Co. v. WUer, 100 Ind. 92. • Grattan v. Metropolitan L. Ins. Co., 24 Hnn, 43. « Andreveno o. Mutual Reserve Fund L. Assn., 34 Fed. Eep. 870. 697 § 462 BBMEDIES, PRACTICE, PLEADING AND EVIDENCE. § 462. Opinion Evidence. — Opinion evidence is admis- sible in actions on insaraace policies, as in other eases and under the same conditions and limitations. Often, there- fore, the testimony of persons versed in the business of insurance is allowed, and these experts can testify as to matters peculiarly within their knowledge, as, for example, that the business of a farmer is considered the least hazard- ous occupation; ^ but it does not follow that because one is an insurance agent that he is qualified to testify as an ex- pert.^ Sometimes non-experts are permitted to give opin- ions as, for instance, as to the insanity of a person if all the facts upon which it is based are stated ; ' but not unless the facts on which the opinion is based are stated ; * but one not a physician cannot state his conclusion as to the cause of the death of a person from knowledge obtained by seeiaw him in his last illness,* nor can a witness testify as to the age of a person, he judging from the latter' s appearance; ' nor is the opinion of a witness admissible as to the effect upon a person of a habit of drunkenness five years before a policy was issued on his life, the witness knowing nothing concerning his habits in the meantime.^ Physicians and surgeons of practice and experience are experts, and their opinions upon questions embraced in their profession and practice are admissible, though they have not made the particular disease in question a specialty.' A physician who attended the insured in his last iUness may give his 1 Hartman v. Keystone Ins. Co., 21 Pa. St. 466. s Stennett v. Penn. F. Ins. Co., 68 la. 674. » Butler V. St. Louis L. Ins. Co., 45 la. 93; United Brethren M. A. Soc. V. O'Hara (Pa.), 13 Atl. Rep. 932; 12 Cent. Rep. 682; Hathaway v. Nation- al L. Ins. Co., 48 Vt. 336. * Southern L. Ins. Co. b. Wilkinson, 53 Ga~ 635. « Grattan v. Metropolitan L. Ins. Co., 80 N. Y. 281. ~ Valley M. L. Assn. v. Teewalt, 79 Va. 421. ' Northwestern M. L. Ins. Co. v. Muskegon Bank, 122 IT. S. 501. * Hathaway v. National L. Ins. Co., 48 Vt. 335. 698 REMEDIES, PRACTICE, PLEADING AND EVIDENCE. § 462 opinion as to the disease which caused his death ; ^ or that death from the disease of which assured died is the result of other diseases of long standing and not of any sadden canses,^ and as to the effect of a certain disease on the mind; ' but such an expert cannot give his opinion on the testimony in a case,* nor his opinion as to the character of a risk on a man's life, if within three months he had had a hemorrhage of the stomach.* Opinions are not admissible if they are based on oonjectore, as where a medical witness testified that he had an impression sufficient to satisfy his own mind, but not enough on which to base an opinion ; * nor if the question does not call for facts and knowledge peculiarly within the knowledge of an expert, as whether, if the insured had a certain disease and committed suicide, it should be attributed to such disease ; ' nor can a medical witness state the meaning of the term, " family physician." * Opinions of officers of benefit societies as to the interpreta- tion to be given to its laws are inadmissible, and ' so is proof of the custom and usages of the society respecting the con- stmction of the contract.^*' In an action upon a certificate in a mutual association, where the application of the mem- ber showed that he drank no liquor at all, and the validity of the certificate depended upon the truth or falsity of the representations in the application, the medical expert of the association issuing the certificate was asked several ques- tions, to which objections were made and sustained, whether > Mobile L. Ins. Co. v. Walker, 58 Ala. 290. » EdiDgton V. Mnt. L. Ins. Co., 77 N. Y. 564. ' Koenigc. Globe il. L. Ins. Co., 10 Hun, 558. * Bntler v. St. Louis L. Ins. Co., 45 la. 93; Hagadom v. Conn. M. L. Ins. Co., 22 Hun, 249. » Schwarzbach r. Ohio Valley Prot. Union, 25 W. Va. 623. • Higbie r. Gaardian M. L. Ins. Co., 53 N. Y. 603. ' Van Zandt r Mnt. Ben. L. Ins. Co., 55 N. Y. 169. , * Beid V. Piedmont & Arlington L. Ins. Co., 58 Mo. 421. • DaTidson v. Supreme Lodge K. of P., 22 Mo. App. 263. » Hanson r. Grand Lodge A. O. U. W., 30 Minn. 509. 699 § 463 REMEDIES, PKAC3TICE, PLEADING AMD EVIDENCE. the application for membership would have been favorably- passed on, if it had been stated in each application that the applicant drank liquor. The court, in passing upon these objections, said : ^ " We think that the objections to these questions were properly sustained. The real issue was, whether the statements, made in the application, were true or false, ^yhat would have been the effect, if some differ- ent statement from that, therein contained, had been made to the association, was of no consequence. The witness might give his opinion on a matter of science, connected with his profession, but he could not be allowed to state his views of the manner in which others would probably be in- fluenced, if certain specified facts existed." Testimony, called for by questions of a similar character, has been generally held inadmissible.^ There is, however, some authority tending to the contrary.* A medical examiner may testify as to the effect on his mind and action of cer- tain answers of the applicant.* § 463. Ottering Application in Bvidence as Part of Contract. — On principle, if by the terms of the policy the application is made a part thereof, both should be offered in evidence together, and it is error to admit the policy without the application if objection is made,' but the error ^ Northwestern B. & M. A. Assn. v. HaU, 118 m. 169. 2 Co-operative L. Assn. v. Leflore, 53 Miss. 1; Mntoal Ben. L. Ins. Co. V. Wise, 34 Md. 583; Washington L. Ins. Co. v. Haney, 10 Kan. 526; Rawls V. Am. Mut. L. Ins. Co., 27 N. Y. 282; 36 Barb. 357; Dnrrell v. Bederly, 1 Holt N. P. 283; Lyman ». State M. F. Ins. Co., 14 Allen, 329; Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; Campbell c. Bickards, 5 Bam. & A. 480. ' The following are cited in Co-operative L. Assn. v. Leflore, 53 Miss. 1, but they do not support fully the claim there made : Berthoa o. Lough- man, 2 Stark. N. P. 258; Webber n, Eastern R. E., 2 Met. 147; Kernr. South St. L. M. Ins. Co., 40 Mo. 19; Hawes v. New Bngland Ins. Co., 2 Cnrtis C. C. 229; Hartman v. Keystone Ins. Co., 21 Pa. St. 466. ' Valton V. Loan Fund Ass. Soc, 1 Keyes, 21. • American Underwriters' Ass. v. George, 97 Pa. St. 238; Lycoming 700 REMEDIES, PRACTICE, PLEADING AND EVIDENCE. § 464 is cared if afterwards the company offer the application ; ^ or, as the application is one which belongs to and is in the possession of the company, if the latter on notice refuses to produce it, the policy is admissible without the applica- tion; * and it is also admissible without the application if the latter is only referred to in the policy but not made a part thereof ; ^ or when the insured swears he never signed the application.^ § 464. Evidence of Preliminary STegotiations op Agree- ments. — The law will not allow the terms of a written con- tract to be varied by parol evidence of what was said at the time it was negotiated. Written contracts must speak for themselves ; and the language used cannot be varied or controlled by parol evidence of what was said by the par- ties or their agents at the time the contract was negotiated. A written contract may sometimes be discharged, or one or more of its provisions waived, by a parol agreement subsequently made : but never by what was said previous to or at the time it was made, except in a direct proceeding inequity to reform, rescind, or compel the specific perform- ance of it. Never in an action at law. This rule is appli- cable to insurance policies as well as all other written contracts * The assured cannot, therefore, be allowed to F. Ins. Co. V. Stoirs, Id. 361. See contra, Coshman «. United States Ii. Ins. Co., 4 Han, 783; Boach v. Ey. Mat. Security F. Co. (S. C), 6 S. E. B^. 386. ' Iiycoming Mat. Ins. Co. v. Sailer, 67 Fa. St. 108; Edington v. Mat. L. Ins. Co., 67 N. Y. 185; Rich v. Rich, 16 Wend. 666. ' American TTnderwriters' Ass. c. George, supra. * ]Bdington v. Mat. L. Ins. Co., supra. * Commercial Union Ass. Co. v. Elliott, 13 Atl. Rep. 970; 12 Cent. Bep. 668. * Combs V. Charter Oak L. Ins. Co., 65 Me. 382; Jennings v. Qaincy M. P. Ins. Co., 7 Gray, 370; Tebbetts v. Hamilton Mat. Ins. Co., 3 Allen, 569; Ashworth v. Builders M. F. Ins. Co., 112 Mass. 422; ^an v. WorldM. L. Ins. Co., 41 Conn. 168; Schmidt v. Peoria M. & F. Ins. Co., 41 m. 295; Hartford F. Ins. Co. v. Webster, 69 HI. 392; Sullivan v. Cot- 701 § 465 REMEDIES, PRACTICE, PLEADING AND EVIDENCE. show tiiat before the policy was executed the agent agreed to ertend the time of payment of the premium ; ^ or to vary any of the stipulations, admissions or receipts in the policy; ^ or as to any verbal understanding with the agent : ' or that a policy payable on a day designated therein was payable on a different day ; * or, if the language of the policy is clear, as to the construction the parties have placed upon it ; ' or as to the intention of the parties that another than the one named in the policy should be the beneficiary ; * unless there is a latent ambiguity in the desig- nation.' § 465. When Parol Evidence Admissible. — Parol evi- dence is admissible to explain receipts given for preminms; » and to show in what sense special words, as " spitting of blood," were used in an application for life insurance ; ' and to show fraudulent representations as to a local board,^' or that because of the fraud of one of the parties to the contract it , ton states L. Ins. Co., 43 Ga. 423 ; Sias v. Roger Williams Ina. Co., S Fed. Rep. 187. 1 Coombs 0. Charter Oak L. Ins. Co., supra; Mobile L. Ins. Co. ». Pruett, 74 Ala. 487; Clevenger v. Mat. L. Ins. Co., 2 Dak. 114; Mitchell V. Universal L. Ins. Co., 54 Ga. 289. ^ Trager v. Louisiana Eq. L. Ins. Co., 31 La. Ann. 235; Shaw v. Re- public L. Ins. Co., 69 N. Y. 286. ' Carlin v. Western Ass. Co., 57 Md. 616. * Pierce e. Charter Oak L. Ins. Co., 138 Mass. 151. ' Michael v. St. Louis M. F. Ins. Co., 17 Mo App. 23; Nashville L. Ins. Co. V. Mathews, 8 Lea, 499. < Baldwin v. State Ins. Co., 60 la. 497; RusseU «. RnsseU, 64 Ala. 500; Elliott v. Whedbee, 94 N. C. 116. ' Pace V. Pace, 19 Fla. 438; Richardson v. Home Ins. Co., 15 Jones & Sp. 128; Same v. Firemen's Ins. Co., 7d. 169. See Daniels v. Citizens' Ins. Co., 10 Biss. 116; 6 Fed. Rep. 425. 8 Texas M. L. Ins. Co. v. Davidge, 51 Tex. 244; Scurry v. Cotton, States L. Ins. Co., 81 Ga. 624; Todd o. Piedmont, etc.,L. Ins. Co., 34 La. Ann. 63; McLean v. Piiedmont, etc., Ins. Co., 29 Gratt. 361; 31 li. 517. ' Singleton v. St. Louis Mut. L. Ins. Co., 66 Mo. 63. 10 Penn. Mut. L. Ins. Co. ■». Crane, 134 Mass. 56. 702 REMEDIES, PRACTICE, FliEADING AND EVIDENCE. § 466 does not express the actual agreement ,^ or a mistake .^ When the contract is to pay as many dollars as there are members of the association, the number of members may be shown by parol in order to arrive at the measure of damages ; ' or it may be shown by statements contained in an assessment notice ; * or by the number of certificates issued,^ or under a peculiar wording of the certificate, where it was agreed to pay a certain sum and not to exceed seventy-five per cent of the assessments collected, the bjeneficiary may recover without p.royiiig demand on the company to make assess- ments, or show that assessments have been made; or if made, the amount collected thereon. ° § 466. Canvassing' Documents, Prospectuses, Rules, etc. — Published documents and rules of an insurance com- pany in respect to the transaction of its business are admis- sible on the part of a policy holder in an action against it, although it is not shown that he was aware of their existence where the cause of action arose.' And the better rule is that a prospectus of an insurance company may be given in evi- dence to modify the terms of the policy regarding payment of premium.* 1 Hopkins V. Hawkeye Ins. Co., 57 la. 203. * Mtim L. Ins. Co. v. Brodie, 5 Can. Sup. Ct. 1; 20 li. Can. Jnr. 286. Seeante,§458. ' St. Clair Co. Ben. Soc v. Fietsam, 97 111. 474; Fairchild v. N. East- ern M. L. Ass., 51 Vt. 628. * Fairchild v. N. Eastern M. L. Ass., supra. ' Neskern v. N. W. Endowment, etc., Ass., 30 Minn. 406. * Kansas Protec. Union v. White, 36 Kan. 760; 14 Pac. Rep. 276. See aate, § 458. ■ Walsh V. Mtna. L. Ins. Co., 30 la. 133. Bnt see Clenunitt t>. N. T. L. Ins. Co., 76 Va. 355. " Wood V. Dwarris, 11 Eich. 493; 25 L. J. Ex. 129; Wheelton v. Hardisty, 8 EI.' & Bl. 232; 27 L. J. Q. B. 241; 92 E. C. L. B. 231; Collett V. Morrison, 9 Hare, 163; Ruse v. Mut. L. Ins. Co., 24 N. Y. 653; doubting ». c. 23 N. T. 516. See ante, § 363: See as to circulars of the company being inadmissible. Continental Ins. Co. v. Hamilton, 41 Ohio St. 274; Clemmitt v. New York. L. Ins. Co., 76 Va. 355. 703 § 468 REMEDIES, FBACnCE, PLEADING AND EVIDENCE. § 467. Evidence of Usage. — Under some circamstances evidence of osage is admissible, as for example the costom of receiving premiams after they were dne,^ but usage mnst be proved by instances not opinions ; ^ and a costom is not proved by the testimony of a witness that in certain instances known to him a forfeiture was not insisted on. It must be shown that the custom was uniform.' A usage practiced by one company caimot be inferred to exist so as to bind another company; * nor, if the rights of parties depend upon the construction to be given a contract, can evidence of the custom and usage of the company and of the decisions of its officers respecting the construction be given.* § 468. Constmction of Insarance Policies. — We have already referred to the general rules for the construction of insurance contracts.* The first is that they are to be con- strued favorably in favor of the assured and strongly gainst the insurer. As the Supreme Court of Vermont has said:^ "It is a fundamental rnle in the law of insur- ance, that the policy shall be construed most strongly against the insurer, and liberally in favor of the assured. The policy is written by the insurers. They use their own language, and surround and barricade their liability under it with such defenses as they choose to adopt. Oftentimes, their policies, instead of being simple, intelligible instru- ments that the average holder can understand and construe, are burdened with a great number of technical stipulations 1 Girard t. Ins. Co. v. Mut. I,. Ins. Co., 9rPa. St. 15. But see Frank- lin L. Ins. Co. V. Sefton, 53 Ind. a^O: and ante, §§ 361, 431, 432. » Hennessy v. New York M. M. Ins. Co., 1 Old (Nov. Sc.), 259. » niinols Masons' Ben. Soc. v. Baldwin, 86 HI. 479. * Reynolds e. Continental Ins. Co., 36 Micb. 131; American Ina. Co. v. Neiberger, 74 Mo. 167. i Manson v. Grand Lodge, A. O. U. W., 30 Minn. 509. • See ante, §§ 177, 203, 224. > Brink V. Merchants', etc, Ins. Co., 49 Vt. 437. 704 REMEDIBS, PKACTICE, PLEADING AND EVIDENCE. § 469 and conditions, buried under ingenious phraseology that reflects great credit upon the draughtsman, but leaves ' plain people'to learn its true import after their property is destroyed. Then they are informed that the policy is a mere technical notice of special matter to be given in evi- dence in answer to their claim for damages. There is ob- vious reason for the rule of liberal construction in favor of the man whose legal rights are to be extracted from such a labyrinth of mysticism." All the decisions of the courts in insurance cases, cited in the preceding pages, illustrate the universal application of this doctrine. The general rules for the construction of written contracts of course also apply. § 469. Borden of Proof. — In an action upon a life in- surance policy, although the answers in the application are warranties, the burden of proof is on the defendant to show the falsity of any such answers in accordance with the gen- eral rule that the law does not require a party to prove a negative. As was said by the Supreme Court of the United States: ^ " The number of questions now asked of the as- sured 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 that 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 indispens- able prerequisite to payment of the sum secured, that proof to be made only after he was dead and could render no as- sistance in furnishing it. On the other hand, it is no hard- ship, that, if the insurer knows or believes any of these statements to be false, he shall furnish the evidence on which that knowledge or belief rests. He can thus single out the answer whose truth he proposes to contest, and, if he has any reasonable grounds to make such an issue, he ' Piedmont L. Ins. Co. v. Bwing, 92 U. S. 377. 45 705 § 470 BEHEDIES, FBACriCE, PLEADING AND KVlUJSNCE. can show the facts on which it is f oonded. ' ' ^ The harden of establishing the failure to pay assessments is upon the defend- ant.* Where insurable interest is denied the burden of proof is on the pLiintiff t6 prove it ; ^ and the beneficiary of a member of a benevolent society has the burden of proof to show that the member was in good standing at the time of his death, the all^ation of the petition to that effect being denied by the answer.* The parties who claim under the as- signment of a benefit certificate, in its inception payable to a party designated by name, must show that the transfer was in accordance with the laws of the society issuing it,* :ind where a policy is payable to a number of persona, the burden of proving that any one of them survived the others is upon him who asserts it.^ § 470. Evidence of Death. — In an action on a policy of life insurance the burden is on the plaintiff to prove the I Insarance Co. v. Gridley, 100 U. S. 614; John Hancock M. L. Ins. Co. V. Daly, 63 Ind. 6; Northwestern H. L. Ins. Co. c. Hazelett, 105 Ind. 212; 4 N. East. Rep. 582; 2 West. Bep. 690; National Ben. Assn. v. Gran- man, 107 Ind. 288; 5 West. Bep. 848; 7 N. East. Bep. 233; Granger's L. Ins. Co. V. Brown, 57 Miss. 308; Boach v. Ky. Hnt. Security F. Co. (S. C), 6 S. E. Bep. 286; Boisblanc «. La. Equitable L. Ins. Co., 34 Xa. Ann. 1167; Jones v. Brooklyn L. Ins. Co., 61 N. Y. 79; Van Valkenbnrgh V. Am. Pop. Xj. Ins. Co., 70 N. T. 605; Hnrray r. N. Y. J,. loB. Co., 85 N. Y. 236; Mobile Ii. Ins. Co. v. Morris, 3 Lea, 101; Southern L. Ins. Co. v. Booker, 9 Heisk. 606; Bedman v. Mtaa. Ins. Co., 49 Wis. 431; Grange Mill Co. V. Western Ass. Co., 118 m. 396; Swick v. Home L. Ins. Co., 2 Dill. 160; Holloman V. L. Ins. Co., 1 Woods, 674; Clark o. Hamilton M. Ins. Co., 9 Gray, 148; Trenton M. L. Ins. Co. v. Johnson, 24 N. J. L. 576; Mnt. Ben. L. Ins. Co. v. Wise, 34 Md. 582; N. Y. L. Ins. Co. v. Graham, 2 Dnr. 306; Price v. Pheenix L. Ins. Co., 17 Minn. 497. » Tobin 17. West. M. A. See, 72 la. 261; 33 N W. Rep. 663. » Hooper v. Boblnson, 98 U. S. 528 ; Singleton v. St. Lonis Mat. L. Ins. Co., 66 Mo. 63. * Siebert v. Supreme Council, etc., 23 Mo. App. 268. But see Tobin v. Western M. A. Soc, etc., xupra. ^ Henry r. Trustees Grand Lodge, etc., 15 Biadw. 151. • Fuller V. Linzee, 135 Mass. 468. 706 REMEDIES, PRACTICE, PLEADING AND EVIDENCE. § 470 death of the person whose life is insured.^ The general rule is that letters of administration are prima facte evi- dence of the death of the person on whose estate they are granted, but the presumption of death raised thereby is weak and inconclusive, and may be rebutted by slight evi- dence.^ But the Supreme Court of the United States, in accordance ^vith the English doctrine, disapproves of this doctrine and has held to the contrary.' Death, like other facts, may be established by circumstantial evidence, when direct evidence is not attainable; and when absence with- out tidings concurs with other attendant and supporting circumstances to produce the conviction that the party is dead, such proof is all that can be required.* And it is said that the disappearance of a man ' ' under circumstances of shipwreck, or earthquake, or battle, or explosion, or like perils, might well produce a conviction that he is dead."' The Supreme Court of Michigan also has said that: " There is no doctrine which in civil cases requires death to be proved by any more conclusive or peculiar evidence than any other fact material to recovery in an action. If the testimony satisfies the court or jury passing on the facts, and is reasonably sufficient, and compels belief, the conclu- sion is certainly lawful. * * * A sudden disappear- ance, and the failure to discover any traces of a man who if living, could not easily have gone unnoticed, and who was in such a physical and mental condition, as to excite the 1 National Ben. Assn. v. Giaaman, 107 Ind. 288; 7 N. East. Bep. 233; 5 West. Rep. 848; Wackerle o. Mutual tife Ins. Co., 14 Fed. Bep. 23; 4 McC. 508. I - Tisdale v. Conn. Mut. L. Ins. Co., 26 la. 170; Lancaster v. Washing- ton L. Ins. Co., 63 Mo. 121; Cnnningham r. Smith, 70 Pa. St. 450; New- man V. Jenkins, 10 Pick. 515; Jaffers r. Badcliff, 10 N. H. 242; McKimm V. Biddle, 2 Dall. 100; Munro o. Merchant, :.'6 Barb. 397. ' Mntual Ben. L. Ins. Co. v. Tisdale, 91 U. S. 241; Moons v. De Ber- nales, 1 Boss. 307 ; Clayton v. Gresham, 10 Ves. 288 ; Leach v. Leach, 8 Jur. 211. * Boyd 0. New England M. L. Ins. Co., 34 La. Ann. 848. * Idem; see ca.^es cited inst below. 707 § 471 BEMEDIES, PEACTICE, FLEADINO AND BVIDEafCE. anxiety of his friends upon this very subject, cannot be said to afford no evidence tending to prove his death." '■ The cases above cited show that a presumption of the death of a person may arise from circumstances of disappearance and being brought in contact with specific perils, although seven years have not elapsed. The usual presumption of death from absence of seven years without tidings also pre- vails in life insurance cases, but slight evidence has been held to rebut the presumption.^ The Supreme Court of Missouri has held that in cases where death is presumed from an absence of seven years without tidings, there is no presumption of death at any particular time during these seven years ; * but it has also been said in the same State that, no facts appearing except that of the absence of a person for seven years without being heard from, it will be presumed that he died on the last day of the seven years.* § 471. Proofs of Lioss as Evidence. — The preponder- ance of authority is in favor of the view that proofs of loss are admissible in evidence for the sole purpose of showing that the requirements of the policy concerning them have been complied with.* But, although this is true, the Su- preme Court of the United States has said that preliminary 1 John Hancock M. L. Ins. Co. v. Sloore, 34 Mich. 41; Lancaster «. Washington L. Ins. Co., t;2 Mo. 121; Sensenderfer v. Pacific M. L. Ins. Co., 19 Fed. Kep. 68; Whiteley v. Equitable L. A. Soc. (la.), 39 N. W. Rep. 369. > Prudential Assurance Co. v. Edmonds, L. K. 2 App. Cas. 487. * Lancaster v. Washington L. Ins. Co., 62 Mo. 121; Hancock v. Ameri- can L. Ins. Co., Id. 26. ■• Kauz V. Great Council, etc., 13 Mo. App. 341. s Mutual L. Ins. Co. v. Stlbbe, 46 Md. 302; Breckinridge v. American Central F. Ins." Co., 87 Mo. 62; Knickerbocker Ins. Co. v. Gould, 80 111. 388; Imperial F. Ins. Co. ». Shrimer, 96 id. 580; Commonwealth Ins. Co. V. Sennett, 41 Pa. St. 161; Lycoming F. Ins. Co. v. Rubin, 79 HI. 402; Lycoming Ins. Co. v. Schreffler, 42 Pa. St. 188; 44 Id. 269; Baile v. Ins. Co., 73 Mo. 371; Newmark v. Liverpool, etc., Ins. Co., 30 Mo. 160. But see Moore v. Protection Ins. Co., 29 Me. 97; Howard v. City F. Ins. Co., 4 Denio, 502; Lawrence v. Mut. L. Ins. Co., 6 Bradw. 280; Covenant M. B. Ass. V. Hofiman, 110 111. 603. 708 REMEDIES, PRACTICE, PLEADING AND EVIDENCE. § 471 proofs, presented in compliance with a condition of the policy, are admissible as prima facie evidence of the facts stated therein against insurer and on behalf of insurer.^ These last mentioned cases and others hold that the state- ments made by the assared in the proofs of loss are ad- missions, and may be considered by the jury for what they are worth,^ and the modern rule is probably that the proofs of loss furnished by the- assured are not only evidence that the condition of the policy requiring them has been com- plied with, but are also to be regarded as admissions of the fact therein stated. But the party furnishing them may show that statements in the proofs of loss were erroneous or inadvertently made, and the mistake can be shown by parol.* In Massachusetts it is held that if the insured wishes to contradict the proofs of loss he must serve amended proofs on the insurer,* but this doctrine is some- what qualified in a later case.* Statements made by the physician attending the insured, contained in the proofs of I Mat. Ben. L. Ins. Co. «. Higginbotham, 95 ET. S. 380; Mat. Ii. Ins. Co. V. Newton, 22 WaU. 32. * Keels V. Mut. Reserre F. life Assn., 29 Fed. Rep. 198: McMaster v. Insurance Co., 55 N. T. 22S; Parmelee v. Ins. Co., 54 N. Y. 193. But see Campbell v. Charter Oak Ins. Co , 10 Allen, 218; Irving v. Excelsior Ins. Co., 1 Bosw. 507; Worsley v. Wood, 6 T; B. 710. » Conn. Mut. L. Ins. Co. o. Schwenk, 94 U. S. 393; Behr v. Conn. M. L. Ins. Co., 2 Flip. 692; 4 Fed. Rep. 357; \eiU Fry V. Charter Oak L. Ins. Co., 31 Fed. Rep. 197; BeU v. Bundle, 103 U. S. 222; Bundle v. Life Association, 10 Fed. Bep. 720; 4 VV^oods, 94; Davis v. Life Assn., 11 Fed. Rep. 780; Taylor ». Life Assn., 13 Fed. Bep. 493; 3 Fed. Bep. 465. » Weingartner v. Charter Oak L. Ins. Co., 32 Fed. Bep. 314. 3 See last section. * Universal L. Ins. Co. v. Binford, 76 Va. 103. 713 § 477 REMEDIES, PRACTICE, PLEADING AND EVIDENCE. condition in the affairs of the company effected by other policy holders could defeat their recovery. Further, that each policy holder was entitled to a sum of money, which, on the day of the company's insolvency, would purchase from a solvent company a policy of the same kind, for the same amount and the same rate of premium. This sum is to be ascertained by treating the difference between the premiums paid the company and the premiums to be paid the new company as an annuity for the assured' s expectation of life and calculating the cash value. ^ Attachments have also been sustained in other States.^ § 477. Receivers of Insurance Companies. — A decree of a court of competent jurisdiction dissolving a corpora- tion and appointing a receiver vests in the latter all the property of the corporation, and such appointment cannot be questioned collaterally. The receiver represents both the corporation and creditors and stockholders, and in his character as trustee he may maintain an action to set aside illegal or fraudulent transfers of the property made by its officers, and to recover the assets outstanding or misapplied.' His possession is that of the court, whose officer he is, and he cannot be sued at law without its consent.* He has no power to waive proofs of loss or any legal defense.' He can sue in a foreign jurisdiction to recover assets,' but has no other or greater rights as against its policy holders, than 1 In re Albert Life Assn., 9 L. E. Eq. 708; 39 L. J. Ch. 539; 22 L. T. 697; 18 W. K. 1097. " Life Assn. V. Fassett, 102 ni. 315; City Ins. Co.o. Commercial Bank, etc., 68 m. 348. 3 Attorney-General o. Guardian M. L. Ins. Co., 77 N. Y. 272. * Spinning v. Ohio L., etc., Co., 2 Dls. S. C. Cin. 336. " Evans v. Tri-Mountain Ins. Co., 9 Allen, 329; McEvers v. Lawrence, HofE. Cli. 172. " Lycoming F. Ins. Co. o. Wright, 55 Vt. 526; Lycoming F. Ins. Co. V. Langley, 62 Md. 196; Ellis u. Boston, etc., R. R. Co., 107 Mass. 1; .Wilmert;. Atlantic, etc., Co., 2 Woods, 418; Bagby v. Atlantic, etc., R. R. Co., 86 Pa. St. 291; Hurd v. City of Elizabeth, 41 N. J. L. 1. 714 SKHSOIES, PRACTICE, PLEADING AND EVIDENOB. § 478 the company.^ Receivers of insurance companies generally are governed by the same rules which apply in the case of those of other corporations, and further information con- cerning them must be sought in the special treatises relating to that subject. When a receiver is appointed for a life insurance company and its business arrested, the value of fdl claims against it are to be computed from the time of the halt so called.- If a policy holder die after the re- ceivership, but before the time of presentment of claims has expired, his claim is to be considered as matured and its full amount, and not the reserve, is the basis for allowance ; ^ and it seems that if, after the time for allowance of demands has expired, a policy holder should die, it is discretionary with the court whether or not the allowance should be reopened.* § 478. Insolvent Liife Insurance Companies : Status of Policy Holders. — When a life insurance company be- comes insolvent and is placed in the custody of a receiver, its policy holders are not to be considered partners, but creditors, to whom it is liable for breach of the contract implied in its policies that it will receive premiums subse- quently accruing, so as to keep the policy holder con- stantly insured, and so as to keep on hand the reserve required by law and maintain its engagements. The damage of the policy holder is the value of the policy destroyed, and, to ascertain this, resort may properly be had to tables used in the business of life insurance showing the average expectancy of life. All policy holders are to be treated alike, although the health of some may have be- come so impaired that no reinsurance can be effected. Unmatured paid up policies have no preference and annui- 1 Savage v. Medbnry, 19 N. Y. 32; Lycoming F. Ins. Co. v. Lai^ley, tupra. « Attorney-General v. North Am. L. Ins. CkJ., 88 N. T. 173. » People V. Security I.. Ins. Co., 78 N. Y. 114. ♦ Attorney-General ». Continental L. Ins. Co., 88 N. Y 77 But see Dean's Appeal, 98 Pa. St. IW. 710 § 479 REMEDIES, PEACTICE, PLEADING AND EVIDENCE. ties axe to have their present value computed according to the tables in ordinary use. Death claims, also, are not preferred, but if a policy holder die after the insolvency and receivership, but before the time of presentment of proofs, the damage is the full amount of the policy, less a proper deduction for interest. In all claims the premium notes are to be deducted from the amount of damages.^ In mutual companies, however, claims founded on policies matured before the receivership, are to be preferred to claims on policies not matured, for, the maturity of the policy changes the statics of the policy holder. He stands to the company in the same place that a creditor stands to the firm; he is to be preferred to members of the firm.* § 479. Insolvent Benefit Societies. — When a corpo- ration, in the nature of a benefit society, ceases to do busi- ness because of some impediment, as for example being refused a license by the State in which it was incorporated^ it cannot organize a new company and, against the will of the old members, use its endowment fund to obtain reinsurance of the old members, but on application of such old members or parties insured, a court of equity will wind up the affairs of the old company and com- pel the distribution of such fund among those for whose benefit it was created. In such a case in Michigan * the Supreme Court of that State said: "My opinion is that no assessments could legally be made by the board of trustees for the purpose of paying losses which occurred after license to do business was refused. The inhibition of the statute extended to the exercise of corporate functions in Michigan. Its proceedings as a corporation were ar- \ ' People v. Security Life Ins. Co., 78 N. Y. 114 * Vanatta v. N. J. Mut. Life Ins. Co., 31 N J Eq. 15; Stamin v. North- western M. Ben. Assn. (Mich.), 32 N W. Bep. 710; 8 West. Bep. 767. 3 Stamm v. N. Western Mut. Ben. Assn., 32 N. W. Bep. 710; 8 West. Bep. 767. 716 BEMEDIES, PRACTICE, PLEADING AND EVIDENCB. § 480 rested, and, as no steps were taken by it to obtain the right to do business any longer, but on the contrary it abandoned the field, the proceedings to close up its affairs should dat« from that time. The members were entitled to their distributive share of the moneys on hand from that time. If losses occurred prior to that time, the beneficiaries are entitled to precedence and payment of their policies in full from the fund. If members have died since, their representatives are entitled to the distributive shares of such members.',' ^ As the obligation to pay assess- ments to a benefit society is not absolute, but rests only up- on the wUl of the member, there generally being no personal promise to pay, when the organization becomes insolvent the collapse is complete. On general principles, all the rules applicable to insolvent corporations apply to benefit societies and regulate proceedings against them.* § 480. On Dissolation of Mutual Insurance Company Surplus Assets after Creditors are Paid Vests in State. — When a dissolution of a mutual insurance company has been decreed by a court of competent jurisdiction, its assets re- maining after paying all liabilities against the company vest in the State, as such corporation has no stockholders, and its original corporators cannot be regarded as such/* It is questionable whether this is right on principle; it is certainly reasonable to say that the persons contributing the funds, or who at the time of dissolution were policy holders, and therefore stockholders, are entitled to the sur- plus remaining after debts are paid.* 1 The court cite as to jurisdiction Cramer o. Bird, L. R. 6 Bq. 143; In re Suburban Hotel Co., L. R. 2 Ch. App. 737 ; Marr v. Bank of West Ten- nessee, 4 Coldw. 4S4; Bradt c. Benedict, 17 N. Y.93; Slee v. Bloom, 19 Jolin8.456. See also Vanatta v. N. Y. Mut. L. Ins. Co., 31 N. J. Eq. 15. » Ante, §§ 57, 58, 59. » Titcomb o. Kennebunk M. F. Ins. Co. (Me.), 9 Atl. Bep. 783; 4 N. Eng. Bep. 411. * Carlton v. Southern Mut. Ins. Co., 72 Ga. 371. 717 MOETALITY TABLES. Tablb a. — Comparison of the Carlisle, 17 offices, American Ex- perience and English Life, Tables in respect to number living and dying at certain ages from 1 to 100. Tabus B. — Comparison of Northampton, Carlisle, 17 offices, American Experience, English Life, and 30 Amer- ican offices Tables, showing Expectancy of life by each at ages from 1 to 100. NOTB. — ^For statement of origin, etc, of these various Tables, see ''•'•te to § 22, ante. Explanation of Signs in Table A. z. denotes the ages to which the statistics given in the same line apply. X. denotes the namber of persons living at the ages respectively given on the same line in the left hand colnmn marked as. X. denotes the nnmber of deaths at the ages given respectively on the same line in the left hand comer marked x. (719) 720 TABLES OF MORTALITY. TABLE A.— COMPARISON OF DIFFERENT LIFE TABLES. A&E. Carlisle. 17 Offices. Ix- Am. 1858. En^Ush Life Table No. 3. X. Males, Ix- ^x- Fem. J„. ^■ 10,000 1,639 611,746 83,719 488,265 66,774 1 8,461 682 428,026 27,521 422,481 26,159 2 7,779 605 400,606 14,216 396,322 14,023 3 7,274 276 386,290 9,213 382,299 9,243 4 6,998 201 377,077 6,719 373,056 6,596 6 6,797 121 370,358 5,033 366,460 4,866 6 6,676 82 365,325 3,953 361,594 3,816 7 6,594 68 861,372 8,310 367,779 3,2+9 8 6.536 43 868,062 2,734 364,630 2,724 9 6,493 83 355,328 2,297 351,806 2,328 10 6.460 29 100,000 100,000 863,031 1,983 349,478 2,046 11 6,431 31 99,324 99,251 351,048 1,776 347,433 1,861 12 6,400 32 98,660 98,605 349,272 1,666 346,572 1,765 18 6,368 83 97,978 97,762 347,606 1,637 343,807 1,746 14 6,335 86 97,307 97,022 346,969 1,679 842,062 1,789 15 6,300 39 96,636 96,285 344,290 1,781 340,273 1,888 16 6,261 42 95,965 96,660 342,509 1,928 338,385 2,029 17 6,219 43 95,293 94,818 340,581 2,112 336,366 2,206 18 6,176 43 94,620 94,089 338,469 2,320 334,151 2,400 19 6,133 43 93,945 93,362 336,149 2,641 331,761 2,609 20 6,090 48 93,268 92,637 333,608 2,764 329,142 2,819 21 6,047 42 92,588 91,914 330,844 2,801 326,323 2,867 22 6,005 42 91,905 91,192 328,043 2,836 323,456 2,912 23 5.963 42 91,219 90,471 325,207 2,868 320,544 2,952 24 6,921 42 90,529 89,751 322,339 2,897 317,692 2,989 25 5,879 43 89,835 89,032 319,442 2,926 314,603 3,024 26 5,836 43 89,137 88,314 316,516 2,964 311,579 8,055 27 5,793 45 88,434 87,596 313,562 2,981 308,624 8,084 28 6,748 60 87,726 86,878 310,581 3,009 305,440 3,112 29 5,698 66 87,012 86,160 307,572 3,038 302,328 3,138 30 5,642 57 86,292 86,441 304,534 3,068 299,190 8,163 31 5,685 57 85,566 84,721 301,466 8,100 296,027 8,187 S2 6,628 66 84,831 84,000 298,366 3,134 292,840 3,209 R3 6,472 56 84,089 83,277 295,232 3,171 289,631 8,283 34 5,417 56 83,339 82,551 292,061 3,211 286,398 3,256 35 5,362 66 82,581 81,822 288,850 3,264 283,143 3,279 36 5,307 66 81,814 81,090 285,696 8,300 279,864 3,301 37 '6,251 67 81,038 80,353 282,296 3,352 276,563 8,326 38 5,194 68 80,263 79,611 278,944 3,406 273,237 3,850 89 6,136 61 79,458 78,862 276,638 3,466 269,887 8,376 40 5,075 66 78,653 78,106 272,073 8,629 266,611 3,402 41 5,009 69 77,838 77,341 268,644 8,696 263,109 3,431 42 4,940 71 77,012 76,567 264,948 3,668 259,678 3,469 43 4,869 71 76,178 76,782 261,280 3,746 256,219 3,490 44 4,798 71 76,316 74,986 267,634 3,826 262,729 3,522 45 4,727 70 74,435 74,173 253,708 3,912 249,207 3,655 46 4,667 69 73,626 73,345 249,796 4,001 245,662 3,591 47 4,688 67 72,582 72,497 245,796 4,096 242,061 3,627 48 4,621 63 71,601 71,627 241,700 4.192 238,434 8,665 49 4,458 61 70,580 70,731 237,508 4,292 234,769 8,705 TABLES OF MOBTALITT. 721 TABLE A.— COMPAKISON OF DIFFERENT LIFE TABLES.— Cont'd. ifiE. X. Carlisle. 60 61 &i 63 64 M 67 58 «9 60 «1 62 «3 «4 66 66 67 68 «9 70 71 ■72 73 74 75 76 77 78 79 «0 81 Si 83 85 86 87 88 89 «0 91 92 93 94 95 96 97 98 99 100 4,397 4,338 4,276 4,211 4,143 4,073 4,000 3,924 8,842 3,749 3,643 3,521 3,39S 3,268 3,143 8,018 2,894 2,771 2,648 2,523 2,401 2,377 2,143 1,997 1,841 1,675 1,515 1,359 1,213 1,081 953 837 725 623 629 445 367 296 232 181 142 105 75 54 40 30 23 18 14 11 9 69 62 65 68 70 73 76 82 93 106 122 126 127 125 125 124 123 123 123 124 124 134 146 156 166 160 166 146 132 128 116 112 102 94 84 78 71 64 61 39 37 30 21 14 10 7 6 4 3 17 Offices. 69,617 68,409 67,253 66,046 64,786 63,469 62,094 60,658 59,161 57,600 55,973 64,276 52,506 60,661 48,744 46,754 44,693 42,665 40,374 38,128 35,837 33,510 31,159 28,797 26,439 24,100 21,797 19,548 17,369 15,277 13,290 11,424 9,694 8,113 6,685 5,417 4,306 3,348 2,537 1,864 1,319 892 570 339 184 89 37 13 4 1 Am. 1858. Enellsh Life Table No- 8. Males, Ix. 69,804 68,842 67,841 66,797 65,706 64,563 68,364 ^,104 60,779 59,386 67,917 56,371 54,743 53,030 61,230 49,341 47,361 45,291 43,133 40,890 38,569 36,178 33,730 31,243 28,738 26,237 23,761 21,330 18,961 16,670 14,474 12,383 10,419 8,603 6,965 6,485 4,198 3,079 2,146 1,402 847 462 216 79 21 8 233,216 228,821 224,196 219,437 214,562 209,539 204,396 199,114* 193,686 188,102 182,350 176,421 170,303 163,989 167,474 150,764 143,833 136,718 129,421 121,963 114,870 106,675 98,919 91,149 83,416 75,777 68,294 61,026 54,036 47,381 41,115 86,283 29,922 25,060 20,711 16,877 18,549 10,709 8,325 6,360 4,770 3,510 2,531 1,787 1,234 833 548 352 220 134 79 dx- Fein.{_ 4,395 4,626 4,758 4,885 6,013 6,144 5,281 6,428 6,584 6,762 5,929 6,118 6,314 6,515 6,720 6,921 7,115 7,297 7,458 7,693 7,695 7,756 7,770 7,733 7,639 7,488 7,268 6,990 6,655 6,266 5,882 6,361 4,862 4,349 3,834 3,328 2,840 2,384 1,965 1,590 1,260 979 744 553 401 285 196 133 86 56 231,064 227,318 223,630 219,698 216,822 211,576 207,137 202,609 197,692 192,683 187,477 182.068 176,449 170,614 164,5^7 158,275 151,766 145,035 138,088 130,939 123,607 116,118 108,505 100,807 93,071 85,347 77,694 70,173 62,844 66,773 49,018 42,636 36,677 81,181 26,178 21,688 17,716 14,258 11,296 8,802 6,739 6,066 8,735 2,698 1,908 1,320 892 588 378 236 144 3,746 3,788 3,832 3,876 4,246 4,439 4,628 4,817 5,009 6,206 6,409 5,619 5,835 6,067 6,282 6,509 6,731 6,947 7,149 7,332 7,489 7,613 7,698 7,736 7,724 7,653 7,621 7,329 7,071 6,755 6,382 6,969 5,496 6,003 4,490 3,972 3,468 2,962 2,494 2,063 1,673 1,331 1,037 790 588 428 304 210 142 92 69 Beyond 100 years : CsrUsIe, I^ 7, 6,3,1. EngUsli, No. 8, Males, •• •■ Females, 1^ 1^46,25,14,7,4,1,1. 85,49,27,16,8,4,2,1. 722 TABLES OF MOBTALITY. TABLB B. ^ EXPECTATION OF LIFE BT VAKIOUS TABLES-^TE AR& AND DECIMALS. English T.lfn. 30 Am. Offices. i&E. Kortii" »o 3. Carlisle. 17 Offices. Am. 1858. X. ampton. \ Males. Females. Hales. Females. 26.18 38.72 39.91 41.86 1 32.74 44.68 46.66 47.31 2 37.79 47.55 48.83 49.40 8 39.65 49.82 49.61 60.20 4 40.58 50.76 49.81 50.43 5 40.84 51.25 49.71 50.33 6 41.07 61.17 • 49.39 60.00 7 41.03 50.80 48.92 49.53 8 40.79 50.24 48.37 48.98 9 40.36 49.57 . 47.74 48.35 10 39.78 48.82 48.36 48.72 47.05 47.67 49.99 48.06 11 39.14 48.04 47.68 48.08 46.31 46.96 49.32 47.21 12 38.49 47.27 47.01 47.45 45.54 46.20 48.64 46.40 13 37.83 46.51 46.33 46.80 44.76 45.44 47.95 46.64 14 37.17 45.75 45.64 46.16 43.97 44.66 47.26 44.91 15 36.61 45.00 44.96 45.60 43.18 43.90 46.57 44.19 16 35.85 44.27 44.27 44.85 42.40 43.14 45.88 43.48 17 35.20 43 57 43.58 44.19 41.64 42.40 45.18 42.79 18 34.58 42.87 42.88 43.53 40.90 41.67 44.48 42.12 19 33.99 42.17 42.19 42.87 40.17 40.97 43.7i< 41.46 20 33.43 41.46 41.49 42.20 39.48 4C.29 43.07 40.82 21 32.90 40.75 40.79 41.53 38.80 39.63 42.36 40.19 22 32.39 40 04 40.09 40.85 38.13 38.98 41.65 39.56 23 31.88 39.31 3939 40.17 37.46 ?8.33 40.93 38.96 !24 31.36 38.59 38.68 39.49 36.79 37.68 40.21 38.38 25 30.85 37.86 37.98 38.81 36.12 37.04 39.49 37.80 26 30.33 37.14 37.27 38.12 35.44 36.39 38.77 37 23 27 29.82 36.41 36.56 37.43 34.77 35.75 38.04 36.66 28 29.30 35.69 85.86 36.73 34.10 35.10 37.31 36.08 29 28.79 35.00 35.15 36.03 33.43 34.46 36 58 35.49 30 28.27 34.34 34.48 35.33 32.76 33.81 35.85 34.89 31 27.76 33.68 33.72 34.63 82.09 33.17 35.12 34.29 32 27.24 33.03 33.01 33.92 31.42 32.63 34.38 33.C» 33 26.72 32.36 32 30 33.21 30.74 31.88 33.65 33.06 34 26.20 31.68 31.58 32.50 30 07 31.23 32.91 32.42 35 25.68 31.00 30.87 31.78 29.40 30.59 32.17 31.78 36 25.16 30.32 30 15 31.07 28.73 29.94 31.43 31.13 37 24.64 29.64 29.44 30.35 28.06 29.29 30.70 30.47 38 24.12 28.96 ii8.72 29.62 27.39 28.64 29.96 29.81 39 23.60 28.28 28.00 28.90 26.72 27.99 29.22 29.16 40 23.08 27.61 27.28 28.18 26.06 27.3t 28.48 28.48 41 22.66 26.97 26.56 27.45 25.39 26.69 27.75 27.82 42 22.04 26.34 25.84 26.72 24.73 26.03 27.01 27.15 43 21.64 25.71 25.12 26.00 24.07 25.38 26.28 26.45 44 21.03 25.09 24.40 25.27 23.41 24.72 26.55 25.74 45 20.62 24.46 23.69 24.64 22.76 24.06 24.82 2.i.02 46 20.02 23.82 22.97 23 81 22.11 23.40 24.09 2i.30 47 19.61 23.17 22.27 23.08 21 46 22.74 23.38 23.57 48 19.00 22.50 21.56 22.36 20.83 22.08 22 G6 22.83 49 18.49 21.81 20.87 21.63 20.17 21.42 21.95 22.08 TABLES OF MORTAI.1TT. 723 TABLE B.— EXPECTATION OF LIFE BY VARIOUS TABLES— TEARS AND DECIMALS— Conttntifd. 16E. Kartli- i ^^^^a"*"" [30Am.OfllceB. Carlisle. 17 Offices, i &.II1. 1858. X. Males. FemaleB. Males. FemaleB 50 17.99 21.11 20.18 20.91 19.54 20.75 21.24 21.33 &1 17.50 20.89 19.50 20.20 18.90 20.09 20.54 20.59 52 17.02 19.68 18.82 19.49 18.28 19.42 19.84 19.87 53 16.54 18.97 18.16 18.79 17.67 18.75 19.15 19.15 54 16.06 18.28 17.50 18.09 17.06 18.08 18.47 18.44 55 15.58 17.58 16.86 17.40 16.45 17.43 17.80 17.73 56 15.10 16.ti9 16.22 16.72 15.86 16.79 17.13 17.03 57 14.63 16.21 15.59 16.05 15.26 16.17 16.47 16.35 58 14.15 15.55 14.97 15.39 14.68 15.55 15.83 15.67 69 13.68 14.92 14.37 14.74 14.10 14.94 15.19 15.02 60 13.21 14.34 13.77 14.10 13.53 14.84 14.56 14.37 61 12.75 13.82 18.18 13.47 12.96 13.75 13.94 13.73 62 12.28 13.31 12.61 12.86 12 41 13.17 13.34 13.10 63 11.81 12.81 12.05 12.26 11.87 12 60 12.74 12.49 M 11.35 12.30 11.51 11.67 11.3+ 12.05 12.16 11.90 65 10.88 11.79 10.97 11.10 10.82 11.51 11.60 11.31 66 10.42 11.27 10.46 10.54 10.32 10.98 11.0+ 10.74 67 9.96 10.75 9.96 10.00 9.83 10.47 10.50 10.19 68 9.50 10.23 9.47 9.47 9.36 9.97 9.97 9.65 69 9.05 9.70 9.00 8.97 8.90 9.48 9.46 9.13 70 8.60 9.18 8.54 8.48 8.46 9.02 8.97 8.62 71 8.17 8.65 8.10 8.00 8.03 8.57 8.49 8.13 72 7.74 8.16 7.67 7.55 7.62 8.13 8.02 7.65 73 7.33 7.72 7.26 7.11 7.22 7.71 7.57 7.20 74 6.92 7.33 6.86 6.CS 6.85 7.31 7.14 6.76 75 6.54 7.01 6.48 6.27 6.49 6,93 6.72 6.34 76 6.18 6.69 6.11 5.88 6.15 &.56 6.82 5.93 77 5.83 6.40 5.76 5.49 5.82 6 21 5.93 5.55 78 5.48 6.12 6.42 5.11 5.51 5.88 5.57 5.18 79 5.11 S.SiO 5 09 4.74 5.21 5.56 5.21 4.82 80 4.75 5.51 4.78 4.39 4.93 5 26 4.87 4.49 81 4.41 5.21 4.48 4.05 4.66 4.98 4.55 4.17 82 4.09 4.93 4.18 3.71 4 41 4.71 4.2+ 3.88 83 3.B0 4.65 3.90 3.39 4.17 4.45 3.95 3.59 84 3.58 4.39 3.63 3.08 3.95 4.21 3.67 8.33 85 3.37 4.12 3.36 2.77 3.73 3.98 3.40 3.08 86 3.19 3.90 3.10 2.47 3.5 J 3.76 3.1+ 2.S4 87 8.01 3.71 2.84 2.18 3.34 3.56 2.89 2.ii2 88 2.86 3.59 2.59 1.91 3.16 3.36 2.64 2. +2 89 2.66 3.47 2.35 1.66 3.00 3 18 2.89 2.23 90 2.41 3.28 2.11 1*42 2.84 3.01 2.17 2.05- 91 2.09 3.26 1.89 1.19 2.69 2.85 1.98 1.89 92 1.75 3.37 1.67 .98 2.55 2.70 1.81 1.7* 93 1.37 3.48 1.47 .80 2.41 2.55 1.64 1.59 94 1.05 3.53 1.28 .64 2.29 2.42 1.+9 1 46 95 .75 3.53 1.12 .50 2.17 2.29 1.34 1.34 96 .60 3.46 .99 2.06 2.17 1.18 1.23 97 3.28 .1^9 1.95 2.06 1.03 1.09 98 3.07 .75 1.85 1.96 .83 .93 99 2.77 .50 1.76 1.86 .50 .60 lUO i ._. 2'< 1.68 1.76 INDEX. [THB BBTERKI7CBS ABE TO THE SSCnOira>1 A. ACCIDENT, where sane person takes his life by, 329. recovery in case ol, 895a. ACCIDENTAL OE SEKIOUS INJUET, what Is, 235. ACTIONS AGAINST VOLUNTAET ASSOCIATIONS, parties and forms In, 441. ACTION, for damages by member nnjnstly expelled, 442. limitations on time of bringing suit on policy, 443. on insurance contracts generally, 461. parties to, 452. on benefit certificates, 453. measnre of damages in actions at law on benefit certificates, 458. petition or declaration, 464. plea, answer, replication, 455. ADMINISTRATION, LETTERS OP force of as evidence, 470. AFTER ENACTED LAWS, generally bind members, 185. an extreme case, 186. the better vieWj 187. iUnstrative case, 188. AGE, statements as to, 225. AGENCY, general principles of, apply to contracts of benefit societies, 119. general and special, 125. general mles apply to agents of all companies, 161. AGENT, error or frand of, in preparing application, 221. when authority is known to applicant, 222. (725) 726 INDEX. [TH2 REFEREKCBS ask to the SBCnOHS.] AGENT — Continned. delivery of policy by, contrary to instmctions, 277. when equity will correct mistakes of, 278. when agent acted in bad faith, 279. associations and corporations act tlirongh, 117. subordinate lodges both principals and agents, 118. officers of corporation are special agents,- 127. contracting in name of irresponsible principal, 128. acttog in excess of authority, 129. charter or articles of association fountain of authority of, 130. of benefit societies, 133. discretionary powers cannot be delegated, 132. formalities to be observed by, 135, 136. difierence between powers of those of mutual and stock compuiies, 147, general roles of agency apply to aU kinds of, 151. aathority of life insurance agents, 152. modem doctrine concerning, 153. the contrary view, 154. general mle unimpaired, 155. dealings with agent of mutual companies, 156. correct doctrine concerning authority of stated, 158. how far knowledge of binds principal, 159. notice to, 160. pajrment of premiums to, 367. waiver or estoppel by acts of, 426. waiver or estoppel by acts of in preparing application, 428. declarations of, 459. AGEEEMENT, to refer to. future arbitration, 450. ARBITRATION, agreements to refer future differences to generally void, 123. condition for seldom found in life policies, 449. agreements to refer to future arbitration generally void, 450. when condition precedent to action, 450. ARTICLES OF ASSOCIATION, in voluntary associations limit and define rights of members, 37. form contract with members, 91. source of authority of officers, agents, etc., 130. AMOUNT OF RECOVEET, under life insurance contract, 395. AMOTION OF OFFICERS, who has, 124. INDEX. 727 [THK BSFEKBXCB3 AKB TO TECB SBCTIONS.] ANSWER, in actions on insurance contracts, 455. ANSWBBS, to questions in application, see Appucatios. APPLICATION, when i>art of contract, 181. see also Othbr Papkss. difficulty of construing language of policy reterrins to, 191. when partial or no answers are made, 304. when answers are not responsive, 203. qualified answers, 203a. answers to specific questions, 212. question as to good faith. 214. ignorance of latent disease, 214. modem construction of, 214. understanding of applicant as to e&ct of answers, 215. answers in applications to benefit societies, 216. error or fraud of agent in preparing, 331. when authority of agent is known to applicant, 222. reforming application under code, 323. answers as to age, 333. " condition, 236. '• residence, 327. *■ occupation, 338. ^< parents, relatives, ete., 330. « family ptiysician, 330a. " habits, etc., 331. «« good health, 333. latent diseases, 333. " disease, 334. << injury, 233. .omst be accepted to complete contract, 267. may be withdrawn before accepted, 368. wh«i policy is different from that applied for, 269. delay in acting on will not amount to acceptance, 370. company may be bound though application is rejected, 271. medical examiner of benefit societies muse approve, 273. estoppel in matters relating to, 427. estoppel from jnistakes or frauds of agent in preparing application, 438. admissibility of parol evidence to modl^ answers in, 438. oSerii^ tn evidence as part of contract, 463. 728 INDEX. [the eefebxhces ase to the sections.] APPOINTMENTS UNDER POWERS, trhen revocable, 290, see also Powebs. ASSENT, of insarer to assignment, 298, ASSESSMENTS, in benefit societies are consideration of contract, 361. what does not exctise non-payment, 384. consequences of non-payment, 385. to whom money collected on belongs, 386. surplus from, 387. power of subordinate lodge to waive requirements of laws relating to, 388. must be according with law of society, 377. who liable for, 378. notice of, 379. contents of notice, 380. service of notice, 381. from what time period allowed for payment of dates, 382. manner of payment, 383. waiver or estoppel by receipt of, 431. ASSIGNEE, amount of recovery by, 303. ASSIGNMENT, waiver or estoppel in matters relating to, 430. ASSIGNMENT OP POLICY, vested rights of payee, 292. opposite view, 293. when none can be made, 295. when party effecting has possession of policy, 296. assignability of policies, 297. assent of insurer, 298. e&ect of assignment, 299. after loss, 300. of wife's policy, 301. question of insurable interest in, 303. validity, how determined, 303. difference in respect to certificate of benefit societies, 301> ASSOCIATION, see Voldhtabt Association. "ASSURANCE" AND "INSURANCE," are synonymous, 19. INDEX. 729- [thx sefbrbncxs ash to xeb SECTtoirs.J ASSUBED, who is meant by term, 19. declarations of, 460. ATTACHMENT, of company's property, 476. ATTENDANT, MEDICAL, see Mbbicai, Axtbnsant. ATTENDING PHYSICIAN, see FAMrLT Physician. AUTHORITY, of committees, see Committbbs. of officers, see Officers of Association or COBPOBATioir. of agents, see Agents. B. BANKRUPTCY LAWS, insurance companies snbject to, 474. BENEFICIAEY, designation of is act testamentary in its character, 291. when changed new one mnst be of prescribed class, Sll. when entitled to collect, 396. creditor as, 399. BENEFICIAKY, CHANGE OF, snbject of, 289. where can be no cliange, 295. difEerence between certificate and policy, 304. ' development of law of, 305. present doctrine, 306. mnst be in prescribed way, 307. opposing view, 308. when change is complete, 309. jurisdiction of equity to aid imperfect change, 310. governed by same rules as to beneficiary as original designation, 811» waiver or estoppel in matters relating to, 430. BENEFICIARY, DESIGNATION OF, see Designation of Beneficiabt. BENEFICIARIES, take per capita, when, 257. BENEFICIARY ASSOCIATION, Btatate enlarging powers of, when It takes efEect, 46. see Benefit Societies. meetings of may be held on Sunday, 67. 730 INDEX. [the EBVBKBNCES abb to THK SBCTIONa.] :beneficiaby orders, the American, 11. list of, 11, note. expulsion of members of, see Expulsion of Membbrs. BENEFICIARY LIFE INSURANCE, early cases of, 21. J8ENEFIT, of benefit society is paid to designated beneficiary, 286, member has no property in, 237. rights of creditors in, 312. BENEFIT CERTIFICATES, are insurance policies, 153. actions on, 463. measure of damages in actions on at law, 153. BENEFIT SOCIETIES, dual nature of, 1. are social clubs, 2. are business organizations, 8. societies kindred to, 1. ancient origin of, 5. business analogous to that of life insurance companies, 23. may be voluntary associations or corporations, 26. Incorporation of under special act, 12. are they charities, 11. see Beneficiary Association, exemption of from insurance laws, 50. status of considered by the courts, 61. contracts of with members, 51. difference between them and mutual life insurance companies, 61, are insurance organizations, 62. statutes exempting from insurance laws, 63. their business sometimes unrestricted, 51, restrictions on business of, 55. plan of organization of, 61. see Members Benefit Societies. analogies to religious associations, 72, 76. when doing life insurance business are like life insurance corpora- tions, 79. officers' and agents' authority, 133. officers and committees of are special agents, 115. In law are mutual life insurance companies, 116. membership in, 167. INDBX. 731 [thb bxfbsbncbs akk to thb sbotions.] BENEFIT SOCIETIES — Continued. contract of with members, T^here found, 161. << is one of insurance, 162. are restricted as to beneficiaries, 168. ' when contract of is executed may be estopped, 169, construction of contract of, 178. wlien language ambiguous, 179. after enactec! laws, 185, 186, 187, 188. answers in applications in, 216, doctrine of insurable interest applied to, 253. incorporated and unincorporated, 265, ultra vires, 266, reformation of contracts of, 284. cancellation of contract of by equity, 286. contract of contrasted with that of like insurance company as to conditions, 321, 322. Insolvency of, 479. assessments in, see ASSESSMBNTS. BETROTHED, insurable interest of, see INSUBABLE Intebest. BLANK FORMS, refusal of company to furnish, 409. BLOODSPITTING, construction of word, 214. BROTHER, insurable interest of, see INSUBABLB Intbbest. BY-LAWS, definition of, 79. bow made, 80. binding on members, 81. members presumed to know them, 81. requisites of, 82. must be consistent with charter, 83. must not be contrary to common or statute law, 84. must be reasonable, 85. examples of unreasonable by-laws, 86. construction of question for court, 86. what is bad as by-law may be good as a contract, 87. enforcement of, 88. distinction as to between voluntary association and corporation, 89. 732 INDEX. [thk bbfbbencbs ase to the sections.} BY-LAWS — Contiiined. relating to sick benefits, 92. construction of those relating to sick benefits, 94. general roles in regard to, 116. contract of mntaal company when by-lairs violated, 171. BUEDEN OF PROOF, on whom, 469. C. CANCELLATION OF CONTRACT, generally, 285. by eqnily, 285. in case of benefit societies, 286. after loss, 287. CANVASSING DOCUMENTS, admissibility of in evidence, 466. CAUSE, PROXIMATE, subject of, 326, 326, 339. CERTIFICATE, difference between it and insurance policy, 304. CHANGE OF BENEFICIARY, see Benbficiakt, Chaitqb of. CHANGE OF OCCUPATION, see Occupation. CHARGES AGAINST MEMBERS, see ExFULSiOK of Members. CHARITIES, whether benefit societies are, 44. test of, 44. exemption from taxation, 44. English friendly societies not, 45. CHARTER, of corporation source of its powers, 48. constmction of, 48. power of grand lodge to forfeit that of snbordinate lodge, 71, 79> of corporation is contract, 91. fountain of authority for officers, agents and committees, 130. of benefit societies, liberal construction of, 170. CHILDREN, construction of word, 257. take per capita when, 257. insurable Interest in life of parent, see INSUBABLE Interest. INDEX. 733 [THX BBFIBBKNCBS ABK TO THB BBOTIOirS.] CHOICE OF BENEFICIAHY, see Dbsionation ot Benrviciabt. CIVIL COURTS, jurisdiction of In matter of eick benefits, 91. will not interfere in expulsion of members from society if no prop- erty right is involTed, 106. will not inquire into merits, when, 106. when injured members can resort to, 107. CLUBS, history of, 8. analogies between ancient and modem, 9. when general engagements of bind members, 120. powers of president, 140. " vice-president, 141. « secretary, 142. " treasurer, 148. as to liabilities of members of, see Members of Voluktart AsHOciATioir. COMMITTEES, are special agents, 121. when cannot exercise judicial powers, 123. charter or articles of association fountain of authority of, 130. acts and meetings of, 138. COMPLETION OE CONTRACT, see Contract of Insubancb. CONCEALMENT, definition of, 217. of material fact avoids contract, 218. none when facts are unknown, 220. difference between concealment and representation, 220. see also WASBANTr ams Refbbsbntatiom. CONDITION, as to future condition when binding, 823. as to travel, 324. << •< residence, 824. « « intemperance, 326. death from specified causes, 827 « " intoxicants, 328. CONDITION IN LIFE, representation as to, 213. see Occupation. CONDITION OF APPLICANT, as to being maiTied, 226. 734 INDEX. ■ [tee SEFBRBNCES AKB to tee BECTI0N8.] CONDITION PRECEDENT, designation of benefit sometimee is, 212. after loss what is, 401. ■when arbitration is, 450. CONSIDERATION, of contract of insurance is called premium or assessments, 350. all the premiums the consideration, 351. CONSTRUCTION, difficulty in construing language of policy referring to application, Ml. early interpretation contrasted -with modem, 192. statutes relating to, 193. strict construction of warranties, 198. warranties never created by, 199. of warranties must be reasonable, 202. rules for construction of warranties, 203. of partial or omitted answers, 204. of answers not responsive, 205. of qualified answers, 205a. as to materiality of representations, 214. rules of in particular cases concerning applications, 224. of charter, etc., as to designation of beneficiary, 247. lawfulness of designation question of, 254. rules of as to designating beneficiary, 256. as to designating beneficiary as of wills, 255. family, 256. children, 257. orphans, 268. widow, 259. heirs, 260. relatives, 260a. dependents, 261. legal representatives, 262. devisee, 262. legatee, 262. estate, 263. several beneficiaries, 264. CONTRACT OF INSURANCE, execution of, 137. when verbal is good, 173. inforipal execution of, 174. place where made, 175. cannot avoid operation of statute, 176. interpretation of, 177. INDEX. 735- [the sbfekbnces ark to the sbctioms.] CONTRACT OF INSURANCE — Continued. of stock and mutual companies construed alike, 180. other papers part of, when, 181. farther illustrations, 182. what constitutes, 184. result of proposal and acceptance, 190. to complete contract negotiations must be concluded, 266. " " " application must be accepted, 267. is complete when last thing is done, 272. when complete without delivery of policy, 273. after contract is complete change in risk immaterial, 276. consideration is all the premiums when of life Insurance, 351. effect of war on, 356. CONTRACT, what may be bad as by-law may be good as a contract, 87. articles of association or charter form contracts, 91. of benefit societies with members, where found, 161. is one of insurance, 162. of life insurance, is not one of indemnity, 163. is executory and personal, 164. Is aleatory, 165. of benefit societies, when executed, they may be estopped, 169. of mutual insurance companies when by-law has been violated, 171. of insurance need not be in writing, 172. avoided by false representations if material, 209. avoided by concealment of material fact, 218. doctrine of insurable interest applied to, 249-254, Inc. difEerence between that of benefit societies and insurance companies, 304. of life insurance company and benefit societies contrasted with re- spect to conditions, 321. same, 322. reformation of, see Reformation of Contract. cancellation of, see Cancellation of Contract. CORPORATION, defective organization of, 41. powers of cannot be extended by implication, 42. general incorporation laws, 43, 46. powers of, 47, 48. charter source of powers, 48. 736 INDEX, [the kefebences ase to the sections.] •CORPORATION — Continued, modem idea of, 49. dissolution of, 58. interference of equity to remedy abuses and to wind up business of, 69. forfeiture of franchises of, 60. characteristics in common with voluntary association, 62, 63, 61, power of to expel members when charter is silent, 97, formed for gain cannot expel members, 99. see Expulsion of Members. authority of agents of, 125, 126. " " officers of, 127, " " directors, see Directors, " " president, see President. " •' vice-president, see VicE-PREsn>BI)T. " " secretary, see Secretary, " " treasurer, see Treasurer, CREDIT, for premiums, 366, CREDITOR, insurable interest of, 250. not dependent, 261. amount of recovery of, 303. rights of in benefit, 312. rights of when payee in policies, 397. as beneficiary in benefit society, 399, CUSTOM AND USAQE, as to interpretation of terms, 69. D. DAMAGES, measure of damages in actions at law on benefit certificates, 168. DATS OF GRACE FOR PAYMENT OF PREMIUM, see Premium. DEATH, of beneficiary revokes designation, 248. from specified causes may avoid policy, 827, from intoxicants, Si8. from suicide, 328(r, 329, 330, 331, 382, 888, 834, 836, 836, 887. at the hands of justice, 338. In violation of law, 339. evidence of, 470. INDEX. 737 [the ksfsrknces abb to thb sbctionb.1 DEBT, insurance as security for, see Crebitob. DEBTOR, see Creditor. DECLARATION, in suits on insurance i>oUcies, 454. DECLARATIONS, of agent, 459. of assured, 460. DEFENSES, when insurer is precluded from certain, 437. DEFINITIONS, of terms used in life insurance, 26. DEUVERY OF POLICY, see Policy. DEPENDENTS, meaning of, 261. DEPOSIT, special deposit with St»te, 475. DESIGNATION OF BENE1 charges must be sufficient, 103. examples of insufficient charges, 103. where civil courts will interfere, 102. of members beneficiary order, 104. acquittal, appeal, 104o. civil courts will not interfere, when, 105. will not inquire into merits when, 106. when injured members can resort to courts, 107. jurisdiction of equity in, 108. presumption of regularity of proceedings, 110. general rules in regard to, 116. P. FAMLLT, construction of word, 256. FAMELY PHYSICIAN, who is, etc., 230a. FOREIGN INSURANCE COMPANIES, may remove cases to United States conrtB, 472. FOEFEITUEE, non-payment of premium will not effect unless so agreed, 352. when wrongfully declared, 376. see FoucY and also CoNSTBUOnoN. FORMALITIES, to be observed by agents, 135, 136. FREEMASONS, extent of, 12. lodges of sometimes cliarities, 44. an early case relating to, 70. INDEX. 741 [thb sefbbbkcbs abb to teb sbctioks.] FRTENDLT SOdETIES, THE ENGLISH, history of, 10. laws regulating same, 10. not charities, 45. not insnrance companies, 46. JfUTUKE CONDUCT, "^ condition as to when binding, 323. G. GAMING POIJCT, what is, 249, 360, 251. GOOD FAITH, of applicant qnestion of, 214. GOOD HEALTH, wliat is, 232. GOOD STANDING, what is, 414. GKACE, * days of, in paying pTeminms, 870. GRAND LODGE, jurisdiction of, 68. cliarter or constitation regulates powers of, 69. powers of determined in an early Masonic case, 70. powers of in regard to subordinate lodges, 71, 72. power of when incorporated to subject itself to foreign corporation, 72. GUILDS, Iilstoiy of, 6. decay of, 7. successors to, 8. H. HABITS, promissory representation as to, 208. statements as to, 231. HEALTH, representations as to, 232. HEIRS, who are, construction, 260. HUSBAND, insurable interest in life of, see iKscsABUt Intekest. HUMAN LIFE, no liability ciwltter for destruction of, 402. 742 INDEX. [tee referencxs ixa to thb skctioks.] I. ILLNESS see Application. IMPLIED WARRANTT, see Wabrantt. INCORPORATION LAWS, GENERAL, incorporating nnder, 46. substantial compliance witti terms of, necessary, 16. INDEMNITY, contract of life insurance not one of, 163. INTANT, debt of. see Insurable Interest. INJURY, accidental or serious, 235. INSANITY, as an excuse for non-payment of premlom. see Pbbmiuu. INSOLVENCY, of mutual company, 475. effect of charter provisions, 475. attachments of company's property, 476. receiver in, 477. status of policy holders, 478. of benefit societies, 479. INSOLVENT BENEFIT SOCIETIES, see Insolvency. INSOLVENT INSURANCE COMPANIES, see Insolvency. INSOLVENCY LAWS, insurance companies subject to, 474. INSTRUCTIONS, delivery of policy by agent contrary to, 277. INSURANCE AGENTS, are subordinate lodges such, 149. correct doctrine concerning stated, 168. see Agents, and Life Insurance Aosnts. INSURANCE COMMISSIONER, winding up by, 475. INSURANCE CONTRACT, see Contract. INDEX. 743 [the reverences are to the sections.] INSUEANCE LAWS, exemption of benevolent societies from, 60. INSURANCE MONEY, liens on, 398. INSURABLE INTEREST, definition of, 218. of brother, 250. Of child, 250. of creditor, 249, 250. of daughter, 250. of father, 250. of husband, 249, 250. of mother, 250. of parent, 250. of sister, 250. of wife, 249, 260. wagering policies, 249, 250, 251. general rule as to, 251. doctrine applied to benefit societies, 252. question of in assignments, 302. cessation of does not end contract, 397. averment of in petition or declaration, 454. INSURER, liability of conditional, 320. compliance with terms of as to payment relieves Insarer, 100. INTEMPERANCE, what is, 281. conditions relating to, 326. INTERFERENCE OF EQUITT, see Equity. INTERPRETATION, of contract of Insurance, 177. of contract of benefit society, 178. when language is ambiguous, 179. contracts of stock and mutual rocieties construed alike, 180. see CoNSTEUOTiON. INTOXICANTS, statements as to use of, 231. death caused by, 328. J. JUDICIAL POWERS, when cannot be conferred, 123. 744 UTOEX. [the befebences ase to the sections.] JURISDICTION, of grand and supreme lodges, 68. analogon^ to that of certain ecclesiastical bodies, 68. articles of association or constitution regulates powers of, 69. JITRY. materiality of false representations question for, 211. question as to truth of representations, 212. questions of knowledge, intent and materiality of representations ar» for, 219. JUSTICE, death at the hands of, 338. KNOWLEDGE OF AGENT, to what extent binding on principal, 159. L. LATENT DISEASE, when applicant is ignorant of, 214. representations and warranties as to, 233. LEGAL REPRESENTATIVES, construction of word, 262. LEGATEE, meaning of word, 262. LEX FORI, definition, etc., 17S. LEX LOCI, definition, etc., 175. governs vaUdity of designation of beneficiary, 247. LIABILITY, none civiliter for destruction of human life, 102. LIABILITY OF mStTEEE, is conditional, 320. LIEN, on insurance money, 398. see also Insukable Intebest. LIFE, HUMAN, no liability civiliter for destruction of, 403. LIFE INSURANCE, English definitions of, 16. American definition, 17, 62. INDEX. 745- [tee sbfbrbkcbs abb to thx ssctions.] UFE INSURANCB — Contiinied. yarioTis ^classes of, 18. method of condacting business, 23. history of, 20. an early case, 21. first American case, 21a. , definition of terms used in 25. contract of benefit societies with members Is, 61. business of as now conducted in United States, 66. endowment insurance is, 167. LIFE INSURANCE AGENTS, authority of, 152. modern doctrine concerning, 153, 154. see A6E2rparately. WIDOW, construction of word, 259. WIFE'S POLICY, nature of, etc., 294. assignment of, 301. WILLS. construction designation of beneficiary Is as in wills, 255. WINDING DP, by insurable commissioner, 475. INDEX. 761 [ths rsfbrences arb to thk sections.] WORDS, *' assurance " and " iosuiance," 19. family, 356. children, 257. orphans, 358. -widow, 259. heirs, 260. relatives, 260a. dependents, 261. legal representatives, 262. devisee, 262. legatee, 262. estate,86S.