Lessnau v. Catholic Order of Foresters

Hooker, J. (after stating the facts). There is testimony in this case from which the jury might have found, had they been given the opportunity, that, while in his answer to the question accompanying the proposal of his name for membership the deceased stated that he was a “polisher” (which was not necessarily within the term “metal polisher”), he was in fact at that time engaged in the occupation of a “professional metal polisher,” a prohibited occupation. Some two months later, when he — 117 — made his formal application, he stated that his occupation was that of “driver of a dirt wagon.” There is possibly some testimony, not hearsay, tending to show that at that particular time he drove a dirt wagon for a few days, but it is not very convincing, and, taken in connection with the fact — not disputed, we understand — that a few days later he was engaged in, and continued to follow, his occupation of polishing brass to the time of. his death, the jury, had they been permitted, might have found his formal application fraudulent. They should not have been deprived of this opportunity unless there was some valid legal reason for saying that, in spite of the existence of such fraud, plaintiff was entitled to a verdict. We understand that the learned circuit judge took the view that the required investigation by the local court’s committee should have and did put that court in possession of the fact that the deceased was a metal polisher at the time they were called to investigate the proposal for membership, and that, although he later in his formal application misrepresented his occupation, the defendant is estopped and cannot be permitted to deny its liability by reason of the knowledge of the local lodge, and the assumption that it knew of the fact that deceased had stated in the proposal for membership that he was a “metal polisher.” It does not appear that the local court ever knew that deceased was a metal polisher. His first statement was that he was a “polisher,” and many kinds of polishing were not prohibited. There is no syllable of proof that the committee ever ascertained that he was a metal polisher. Even if they attempted to ascertain a fact to which there was nothing in the proposal to especially call their attention, he may have falsified about it, as he is said to have done in his second application'. Nothing goes to show any further knowledge than the contents of the preliminary application afforded upon the part of the local court, or that the proposal was ever returned to the superior body. Again, conceding that deceased’s occupation as a metal polisher was known by it, — 118 — the defendant had a right to suppose that, if the deceased had ever followed the prohibited occupation, he had abandoned it, and engaged in an ordinary calling not precluding his admission. But further than all this, if the deceased’s statement when finally made was untrue, and his alleged occupation at that time a temporary expedient to get admitted to the order, he knew that he was making a fraudulent statement or concealment upon which he expected defendant to rely, and upon which it had a right to rely, and, so far as the knowledge of the local court is concerned, this situation would preclude plaintiff from asserting that defendant was bound by the knowledge and collusion of the members thereof if they can be said either to have been defendant’s agent or had the knowledge. The case of Mudge v. Supreme Court I. O. F., 149 Mich. 467 (113 N. W. 1130, 119 Am. St. Rep. 686, 14 L. R. A. [N. S.] 379), is a case in point, and many authorities are there referred to. To say the least, there was a question for the jury on this point. Some of the cases cited indicate that the doctrines of estoppel and waiver have been greatly overworked in this class of cases in the enforcement of contracts that have not been made, or the evasion of conditions precluding relief, which have been deliberately made by the contracting parties. The recent case of Showalter v. Modern Woodmen, 156 Mich. 390 (130 N. W. 994), is an authority upon the questions here discussed. What has been said in the present case is not meant to indicate that any knowledge brought to the local court can constitute an estoppel against defendant on this record. There is another feature of this case that demands attention. Whatever else appears, it is clear that, if — as the court seems to have properly held — the deceased was a professional metal polisher at the time of his death, his policy was rendered void by the change of occupation, if, as contended by plaintiff’s counsel, he was bona fide engaged in another occupation when he made his formal application. We are compelled to say that the learned cir — 119 — cuit judge was right in determining that this defense was not set up in the plea, and no showing was made which requires us to hold that the denial of the motion to amend the notice was erroneous. At the same time, that was a meritorious defense, and an amendment might well have been permitted, and, had it been, we should not have considered it error. It could have been permitted on such terms as would have protected plaintiff, and whether plaintiff would consent to “withdraw a juror or not.” There is no reason now why defendant should not be permitted to amend the notice, as the judgment should be reversed, for the reasons indicated. There are some other questions that should be referred to, in view of a possible new trial. The defendant by its pleadings was precluded from questioning the proofs of loss, as shown by the following cases, cited by plaintiff’s counsel: O’Brien v. Insurance Co., 52 Mich. 181 (17 N. W. 726); Lum v. Insurance Co., 104 Mich. 397 (62 N. W. 562); Douville v. Insurance Co., 113 Mich. 158 (71 N. W. 517); Hoffman v. Hospital Ass’n, 128 Mich. 323 (87 N. W. 265, 54 L. R. A. 746); Hare v. Protective Ass’n, 151 Mich. 225 (114 N. W. 1009); O’Neill v. Assurance Co., 155 Mich. 564 (119 N. W. 911). It was contended by plaintiff’s counsel that the proof did not show that the occupation said to have been followed by deceased was that of a “professional metal polisher.” We think it established on this record. The judgment should be reversed and a new trial ordered, with direction to permit defendant to amend its notice in the particular mentioned. Baker v. Protective Ass’n, 118 Mich. 431 (76 N. W. 970); Browne v. Moore, 32 Mich. 254; Johnson v. Kibbee, 36 Mich. 269; Hopkins v. Briggs, 41 Mich. 175 (2 N. W. 199); Beecher v. Wayne Circuit Judges, 70 Mich. 367 (38 N. W. 322); Morley v. Insurance Co., 85 Mich. 217 (48 N. W. 502); Smith, Sturgeon & Co. v. Grosslight, 123 Mich. 87 (81 N. W. 975). Brooke, J., concurred with Hooker, J. — 120 — Moore, J. This is an action brought to recover the sum of $1,000 claimed to be due to the plaintiff by reason of the death of her husband, Joseph Lessnau, under a certificate of insurance issued to him. The defendant pleaded the general issue and gave notice that it would show in its defense that the constitution, laws, rules, and regulations in force at the time Lessnau made application for membership in the order provided that no person should be eligible for membership in the order who was engaged in the trade or occupation of a professional metal or tool polisher; that Joseph Lessnau, knowing this, fraudulently represented himself in his application for membership to be a driver of a dirt wagon, having no particular employer, whereas, as a matter of fact, he was actually engaged in such prohibited occupation at the time-he made application for membership in the defendant society ; that by such application he agreed that all statements made by him with reference to his occupation were true, and defendant relied upon the truth of the same in passing upon said application. In the month of November, 1905, Joseph Lessnau applied for membership in. what defendant calls a preliminary application. In this-application the deceased gave his employment as that of a polisher. After deceased had been investigated by an investigating committee appointed by the local court, and had been duly balloted upon for membership in the local court, he made a second application, which defendant calls a formal application. This application is dated January 21, 1906. In it Mr. Lessnau stated that his occupation, was that of a driver of a dirt wagon, and his place of business at 730 Hancock street, and that he had no employer, and took jobs of hauling dirt, etc. At the time he executed this application he was subjected to a physical examination. The formal application for membership, together with the physical examination, were forwarded to Chicago, and the benefit certificate of insurance sued upon, in this action was issued. After both parties rested, the< court directed a verdict for the plaintiff. A motion for a, — 121 — new trial was overruled, and defendant brings the case here by writ of error. We quote from the brief of counsel: “ The case presents seven principal questions: “ First. Did the court err in not requiring the plaintiff to produce testimony showing that proofs of death were furnished or offered to be furnished ? “Second. Did the court err in denying defendant’s motion to direct a verdict for the defendant on the ground that there was no evidence to show that the insured was. a member in good standing of the Catholic Order of Fox’esters, nor that he had complied with the rules, regulations, and by-laws provided in the constitution and bylaws? “ Third. Did the court err in not permitting the defendant to amend its plea and notice ? “ Fourth. Should the court have directed a verdict for' the defendant ? “Fifth. Did the court err in not submitting the case to the jury and giving defendant’s requests to charge ? “Sixth. Did the court err in not submitting to the jury defendant’s five questions of fact ? “Seventh. Did the court err in directing a verdict for the plaintiff ?” Groups 1 and 2 may be considered together: Under defendant’s plea and notice, the only defense urged is that fraud, misrepresentation, and deceit were practiced by deceased as to his occupation in obtaining the benefit certificate, and for that reason he was never a member of defendant order, (a) Under this plea and notice, it was not incumbent upon the plaintiff to show proofs of death., (5) Under defendant’s plea and notice, it was not incumbent upon plaintiff to prove that deceased was a member in good standing at the time of his death. See Hare v.. Protective Ass’n, 151 Mich. 225 (114 N. W. 1009), and cases cited; O’Neill v. Assurance Co., 155 Mich. 564 (119 N. W. 911). 8. Did the court commit reversible error in declining to permit defendant to amend its notice under the plea, so as to show deceased had changed his employment from that of driver of a dirt wagon at the time of his formal applica — 122 — tion to a prohibited employment at the time of his death ? The case was commenced December 27, 1907. The hearing was had in August, 1909. After the plaintiff had made her case, and defendant had entered upon its defense, the following occurred: “Mr. Snyder: Then I will ask leave to amend the plea. “Jfr. Dohany: That is objected to, your honor. “Mr. Snyder: Upon what ground? A plea, may be amended at any time. “The Court: No question about that. It is entirely within the discretion of the court, but I take it that counsel come into court on one theory. “Mr. Snyder: We are in court on both theories. “Mr. Dohany: They want to ride two horses now. They are not satisfied with riding one. “ The Court: The difficulty is here: If this were the plaintiff asking for leave to amend, we could do it very nicely by giving him leave to withdraw a juror and giving the defense an opportunity to prepare. In this case -the defense is asking leave to amend their plea, and I think, in view of the fact that counsel have come into court with this plea with eight different notices attached to it, I am inclined to think, it would be an abuse of discretion to permit the amendment at this time, unless counsel for the plaintiff will consent. If the plaintiff will consent to withdraw a juror and giving himself a chance to prepare for this new defense, I will then grant it. I don’t believe I can compel the plaintiff to do that. “Mr. Dohany: We certainly could not do that under the circumstances, your honor. * * * “ Mr. Snyder: It doesn’t seem to be so much a matter of discretion as it does that the amendment should be allowed. I don’t think the counsel for plaintiff is taken by surprise in this matter. “The Court: He tells the court that he is, and he is a reputable practitioner, and the court believes him. “Mr. Snyder: I think we should be allowed to amend. “ The Court: I will give you the benefit of an exception. Exception for defendant.” It will be observed the case had been at issue a year •and a half at this time. It does not appear that any new information as to the facts had come to defendant. The trial was half over. The record does not show such an — 123 — abuse of discretion as to call for the interference of this court. See Hare v. Protective Ass’n, 151 Mich. 225 (114 N. W. 1009), and cases cited; O’Neill v. Assurance Co., 155 Mich. 564 (119 N. W. 911). The record shows that at the time deceased signed the preliminary application in November he was a polisher and buffer. The following appears in section 158 of defendant’s by-laws: “No officer or member of any department or branch of of the order shall have any authority, power or right to represent or act as the agent of the order, except in the performance of the duties specifically imposed upon him by these laws, rules and regulations. * * * ” After the preliminary application was made, it was read at a regular meeting of the subordinate court, and applicant’s fee of $2 paid as provided in section 222. The application was indorsed by two members in good standing, as required by section 221. The recording secretary of the subordinate tent appointed two members who investigated deceased’s occupation, as required by section 224. This investigating committee recommended the admission of Mr. Lessnau by a written report to the recording secretary. Deceased was thereafter duly elected a member of defendant order as provided in sections 228 and 229. It is not probable, in view of what occurred, that the subordinate court did not know at this time all about the applicant’s occupation. When the formal application was made, deceased truthfully stated his occupation. The certificate was issued and deceased paid all that was required of him up to the time of his death. To refuse to pay now does not appeal to our sense of justice. We think the court made a proper disposition of the case. Wagner v. Knights of Honor, 128 Mich. 660 (87 N. W. 903); Hoskins v. Loan Ass’n, 133 Mich. 505 (95 N. W. 566); Dorff v. St. Adalbert’s Aid Society, 157 Mich. 516 (122 N. W. 82). Judgment is affirmed. Bird, O. J., concurred with Moore, J. — 124 — Blair, J. I agree with Mr. Justice Moore. The benefit certificate issued by defendant and containing the agreement of the parties contains the following clause: “The statements made by said member in the proposition blank, signed by him at the time of his proposal as a member of said Catholic Order of Foresters, are hereby acknowledged and declared by him to be warranties and to be made a part of this contract.” Under this clause, defendant was as much chargeable with notice of the applicant’s occupation at the time as though the statements of the proposal blank had been printed in extenso in the certificate, and, having received his money, is estopped to claim that such occupation rendered him ineligible to membership. Dorff v. St.Adalbert’s Aid Society, supra. Under its plea, defendant assumed the burden of proving that plaintiff’s decedent falsely stated his occupation in the formal application as that of driver of a dirt wagon. The record is barren of evidence that Mr. Lessnau’s statement was false at the time it was made, and such evidence as there is tends to support his wife’s hearsay testimony that he was in such occupation. I think the trial judge made a correct disposition of the case, and the judgment should be affirmed. Ostrander, McAlvay, and Stone, JJ., concurred with Blair, J.