Lathrop v. Modern Woodmen of America

Mr. Justice McBride delivered the opinion of the court. 1. The evidence proffered by the defendant and excluded by the court below tended to show that the benefit certificate was forwarded to the Clerk of the local Camp of Woodmen, and that deceased, after having obtained knowledge of that fact, postponed accepting it, and that it remained in the custody of the Clerk, pending delivery, until he was mortally injured, and then it was delivered to his son. We are of the opinion that the rejection of this testimony was error. As will be seen from the foregoing statement, the by-laws of defendant are a part of the contract of insurance, being expressly referred to and practically made a part of the application of deceased. Section 30 of .said by-laws provides, among other things, that the benefit certificate “shall not become effective until delivered, by the Camp Clerk, to the applicant while in good health.” This is what the parties agreed should be a good, effective delivery. To say that the certificate became effective as soon as it reached the Camp Clerk is to say that a delivery by the head office to the Camp Clerk is a delivery by the Camp Clerk to the applicant, which is a perversion of plain language, which wipes Section 30 of the by-laws out of existence. There are many authorities to the effect that the issuing and mailing of a policy by a life insurance company to its local agent with the intent that it shall be unconditionally delivered to the insured constitutes a delivery of the policy: New York Life Ins. Co. v. Babcock, 104 Ga. 67 (30 S. E. 273: 42 L. R. A. 88: 69 Am. St. Rep. 134); Kilborn v. Prudential Ins. Co. (Minn.), 108 N. W. 861; Yonge v. Equitable Life Assurance Society, 30 Fed. 902. Such has been the holding of this court in Francis v. Mutual Life Ins. Co. 55 Or. 280 (106 Pac. 323). But [448] these cases turn upon the theory of the intent that the policy shall be unconditionally delivered, and that the parties have not stipulated for anything else as a condition precedent to the policy taking effect, and are readily distinguishable from a case of this kind, where the contract in its inception states just what shall be done and how the policy shall be delivered in order to make it binding and effective. So it has been held with practical unanimity that, in policies issued by fraternal beneficiary societies, requirements of the character above indicated are conditions precedent and a part of the contract of insurance and will be enforced accordingly: Niblack, Ins., § 139; McLendon v. Woodmen of the World, 106 Tenn. 695 (64 S. W. 36: 52 L. R. A. 444); Kohen v. Mutual Reserve Fund Life Ass’n (C. C.) 28 Fed. 705; Michigan Mutual Life Ins. Co. v. Thompson (Ind. App.) 86 N. E. 503; Wilcox v. Sovereign Camp W. O. W., 76 Mo. App. 573. Nor can the officers of the local Camp waive the conditions imposed by the by-laws: Borgraefe v. Knights & Ladies of Honor, 22 Mo. App. 127; Loyd v. Modern Woodmen of America, 113 Mo. App. 19 (87 S. W. 530); Sterling v. Head Camp W. O. W., 28 Utah 505 (80 Pac. 375). 2. Sections 40 and 260 of the by-laws of the defendant society expressly provide that no local Camp, nor any officer thereof, shall be permitted to waive any of the provisions of the by-laws of the society. While we greatly regret that the delay of deceased, as indicated by the evidence proffered, may have been the cause of depriving his widow of a sum of money which a delivery of his certificate would have assured her, we cannot allow our sympathy for her to induce us to ignore the express conditions of the contract upon which the certificate, under which plaintiff claims, was to become effective. The judgment is reversed, and a new trial ordered. Reversed.