Somo v. Independent Order of Foresters

Mr. Justice Benson delivered the opinion of the court. There are a number of assignments of error, but the conclusions we have reached render it unnecessary to consider any of them except the defendant’s motion for a directed vérdict. 1. At the outset it may be observed that the beneficiary certificate contains the following clause: “I hereby expressly agree that the constitution and laws of the Independent Order of Foresters, as well as any amendments thereof which may be adopted from time to time by the Supreme Court, shall be a part of this contract.” Subdivision 6 of Section 73 of the laws of the order reads thus: “As soon as a court is instituted, whether instituted under the authority of the head office of the order, or under the authority of a high court, such court shall forthwith become and be the agent of the members thereof and applicants for membership therein, and no act of such court or of any officer or member thereof shall be construed as having been done for the order, but shall be construed as having been done for such .court and the members thereof and applicants for membership therein.” Subdivision 10 of Section 104 reads as follows: “As the' financial secretary and other officers of a court are not officers of the corporation contracting [657] with the beneficiary members of the order, the order itself, subject to the provisions of section ninety-seven, sub-section seven, shall in nowise be held accountable for any dereliction of duty on the part of the financial secretary or of any other officer of a court, and all payments for whatsoever purpose made to any officer of a court by the members of such court shall be received by such officer as agent of the member making the payment.” There is no contention that the supreme court had any knowledge of the alleged agreement between plaintiff and the financial secretary of the subordinate lodge, but plaintiff’s right of recovery is based entirely upon the theory that Le Gfrand, in promising to protect plaintiff’s interest as beneficiary, was acting as the agent of the supreme court and that it was therefore bound by his promise. This theory was adopted by the trial court in its instructions to the jury and in support thereof our attention is called to the cases of Whigham v. Independent Foresters, 44 Or. 543 (75 Pac. 1067), and Patton v. Women of Woodcraft, 65 Or. 33, 40 (131 Pac. 521). The first of these cites as authority Cox v. Royal Tribe, 42 Or. 365 (71 Pac. 73, 95 Am. St. Rep. 752, 60 L. R. A. 620), and Patterson v. United Artisans, 43 Or. 333 (72 Pac. 1095), both of which involve the question as to whose duty it was to supply the supreme lodge with the proofs of death. As to the question of agency both opinions were based upon specific by-laws requiring the subordinate lodge to secure and present such proofs, and it does not appear in any of these cases that the attention of this court was called to any provisions similar to those quoted. But if these can be construed to support plaintiff’s contention they have, to that extent, been practically overruled by the later case of Hartman v. National Council, 76 Or. 153 (147 Pac. 931, L. R. A. [658] 1915E, 152). Plaintiff urges that this case is based upon the statute of 1911 (Laws 1911, p. 354), and that the contrary doctrine prevailed until then. "We have examined the statute with care, and are unable to find any provision therein relating to the subject of agency nor do we discover in the opinion of Mr. Justice Burnett, in the Hartman Case, that his conclusion was influenced by any statutory provision. On the contrary, his views are expressed thus: “The question is: What is the legal conclusion to be drawn from those uncontroverted facts? Some courts have gone so far as to say that, notwithstanding the laws of the order and the stipulations of the parties to be bound by them, yet the local officers are the agents of the chief organization of the order, and not of the members of the local council. Such is the rule laid down in such cases as Dromgold v. Royal Neighbors, 261 Ill. 60 (103 N. E. 584), and Dougherty v. Supreme Court etc. Foresters, 125 Minn. 142 (145 N. W. 813), and other precedents which might be noticed. The great weight of authority, however, is to the effect that it is competent for parties to enter into a contract such as is hei;e set out and embodied in the certificate and laws of the order. There is nothing contrary to public policy or'in violation of any public law in making such a stipulation. There is' good reason for making the officer of the local council the agent of the member, for that official is elected by the vote of the members, and, being so chosen, it is competent for the parties to stipulate against a possible favoritism to be shown by the officer to the person who elects him as against the general membership of the order.” 2, 3. It is strenuously urged hy plaintiff that this is a case wherein the defendant has received money which in good conscience it ought to refund. We cannot concur in this contention since by the great weight of authority the divorce did not deprive her of her right to recover the full value of the policy in the event of [659] the death of the assured prior to his withdrawal from the order: 14 M. A. L. 146; Overhiser’s Admx. v. Overhiser et al., 63 Ohio St. 77 (57 N. E. 965, 81 Am. St. Rep. 612, 50 L. R. A. 552); Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457 (24 L. Ed. 251). Neither could the defendant prevent Riley from severing his connection with the order. “Unless the compact between the members of a voluntary association provide to the contrary, a member may withdraw from it at any time. ‘ The entering into it, the remaining in it, the performance of duties incumbent upon the member, by reason of his membership, are purely voluntary.’ Consequently the member may withdraw when he pleases without the consent of the association”: 1 Bacon, Benefit Societies, § 111, and cases there cited. 4. It follows that all of the moneys received by the defendant from the plaintiff were earned premiums upon a valid contract of insurance which was finally canceled through no fault of the defendant and if she had any right of action it would be against her former husband, Riley, for a breach of his agreement with her. It follows that the motion for a directed verdict should have been allowed. Since in no event could the plaintiff recover in this action, a judgment will be entered here in favor of the defendant. Reversed and Judgment Rendered. Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McCamant concur.