Stevens v. Modern Woodmen of America

Siebeckee, J. It is the contention of appellant that the court erred in finding that the deceased was not engaged in the occupation or employment of a “saloon bartender,” and that he was not engaged as agent or servant in the sale of malt or spirituous liquors to be used as a beverage. It is claimed that, by violating the fundamental law and the by-laws of the order, the insured forfeited all rights and claims under the benefit certificate whereon plaintiff bases her right to recover. The certificate issued to the insured provided that if he failed to comply with and to conform to any and all of the laws of the order, whether in force when the certificates issued or thereafter adopted, the certificate should be void. It also specified that if any person, after becoming a member of the order, engaged in any of the employments and occupations prohibited by its laws, the certificate issued to him should thereby be forfeited and of no further validity. By the fundamental laws of the order it was enacted that persons engaged in certain classes of business or employment, among which was specified the occupation of “saloon bartender,” should not be admitted as members, and provided that engagement by a member in any of these employments or occupations should forfeit his certificate and render it void. The defendant adopted a by-law in 1903 prescribing that if any member should thereafter “enter upon the manufacture or sale of malt, spirituous, or vinous liquors to be used as a beverage, in the capacity of proprietor, stockholder, agent, or servant, ... he shall, ipso facto, forfeit all rights as a member” and his certificate shall become void. Defendant insists that the insured [611] violated these provisions of its code and thereby forfeited his membership and his rights nnder the benefit certificate. In support of this contention it is urged that he engaged in the occupation or employment of a “saloon bartender” and as Mr. Miner’s servant sold liquors to be used as a beverage. The trial court found1 that the insured performed work for Mr. Miner in his restaurant and in his saloon business from January 20, 1904, to April 26th following, o and that his death' occurred two days thereafter, and that he was not employed as a bartender, but to perform other services in and about the restaurant and saloon. It is shown that while he was so employed in the saloon he waited upon customers, both in the presence and the absence of his employer, who stated that he occasionally requested the deceased to wait upon customers at the bar. The evidence establishes the fact that Mr. Miner did not employ the deceased as a bartender, nor did he pay him any compensation for such services. The extent of the services performed by the deceased in this respect is that, when he was engaged in his employment in the restaurant and saloon, he waited upon customers as an. accommodation to his employer at occasional instances. These occasional acts of performing the duties of a saloon bartender and selling liquor to be used as a beverage cannot be treated as being an employment in the prohibited occupation under the defendant’s code of laws. Engaging in the employment or occupation prohibited by the conditions of the contract must be held to have reference to the vocation or calling to which an insured devotes himself with some degree of perpaanency for hire or profit, and it does not refer to acts which are simply incidentally connected with a regular employment. Hall v. American M. Acc. Asso. 86 Wis. 518, 57 N. W. 366; Fox v. Masons' F. Acc. Asso. 96 Wis. 390, 71 N. W. 363; Comstock v. Fraternity Acc. Asso. 116 Wis. 382, 93 N. W. 22; Stone’s Adm’rs v. U. S. C. Co. 34 N. J. Law, 371; Guiltinan v. Metropolitan L. Ins. Co. 69 Vt. 469, 38 Atl. 315; Union Mut. [612] Acc. Asso. v. Frohard, 134 Ill. 228, 25 N. E. 642; Wildey C. Co. v. Sheppard, 61 Kan. 351, 59 Pac. 651; 15 Cyc. 1041, and note. Tbe finding of the trial court is sustained by the evidence, and the judgment was properly rendered awarding recovery on the benefit certificate. By the Court. — ‘Judgment affirmed. BhsRWiN, J., took no part.