Valerio v. Woodmen of the World

Doerfler, J. The evidence, in substance, sustains all the allegations as above set forth and contained in the answer of the defendant. It is clear from an examination of the record herein that the defendant at all times was and is a fraternal benefit society, and not, as found by the civil court, a foreign mutual life insurance corporation. There was no contention made at the trial that the plaintiff’s husband had prior, to his death complied with the provisions of the constitution and by-laws of the defendant, a [524] compliance with which is made a condition precedent to the payment of any benefit under a certificate. Plaintiff relies upon the decisions in the cases of Northwestern Iron Co. v. Ætna Ins. Co. 23 Wis. 160; Strohn v. Hartford F. Ins. Co. 33 Wis. 648; Mathers v. Union Mut. Acc. Asso. 78 Wis. 588, 47 N. W. 1130, and other cases, which hold that a valid parol agreement to insure may be made without delivery of a written policy, provided the terms are definitely fixed. In Northwestern Iron Co. v. Ætna Ins. Co. 23 Wis. 160, it was held: Such an “action might be sustained, providing it appeared that the agents of the company had authority to make the parol contract of insurance relied on. . . . If the agents of the company were fully authorized to make the contract set out in the complaint, we know of no satisfactory reason why a recovery may not be had upon it.” The Northwestern Iron Company Case was decided by this court in the year 1868, and in 1871 the legislature passed ch. 13 of the laws of said year, which among other things provided: “Whoever solicits insurance on behalf of any fire, marine, inland, life or accident insurance company, or transmits for any person other than himself an application for insurance, or a policy of insurance, to or from said company, or advertises that he will receive or transmit the same, shall be held to be an agent of such company to all intents and purposes, unless it can be shown that he receives no commission or other compensation or consideration for such service.” The foregoing enactment was incorporated in the Revised Statutes of 1878 as sec. 1977, and also in S. & B. Ann. Stats. 1889 under, the same section number. In 1891, in the case of Mathers v. Union Mut. Acc. Asso. 78 Wis. 588, 47 N. W. 1130, the decision, among other things, contains the following language: “The general and almost unlimited powers of all insur525 anee agents doing business in this state are sufficiently expressed in the statute. Sec. 1977, R. S.” This section is then set forth in the terms as above stated, and the court thereupon continues in its decision, and says: “The meaning of this language could not be made clearer by construction or comment. All insurance companies understand that all of their agents doing business in this state are general agents, however restricted their powers may be by the rules of the companies, or by the stipulations or. conditions of their policies or of the applications for insurance. The only act of the agent here that the company disclaims and repudiates is contracting for a present insurance.” And it was held in that case that an oral contract for present insurance, made by the agent of an accident association, is binding upon such association under the provisions of sec. 1977, R. S., as it then existed, although the application signed by the person to be insured contained a provision that the association should not be liable for any injury happening prior to the receipt and acceptance of the application and member’s fee by the secretary and general manager, and the policy subsequently issued bore date two days later than the oral agreement. It does not, however, appear from the report of the latter case whether the company was a fraternal benefit society. In the year 1905 (ch. 353, Laws 1905) sec. 1977 was amended by adding at the end thereof the following; “This section shall not apply to agents of licensed fraternal beneficiary societies, or. mutual fire insurance companies of this state except those organized under section 1896, 1897 and 1898.” Ch. 216, Laws 1911, was thereupon enacted and was incorporated in our statutes as secs. 1956 and 1957. Sub. 1, sec. 1956, Stats., provides: “Any corporation, society, order, or voluntary association, without capital stock, organized and carried on solely for the mutual benefit of its members or their beneficiaries, and [526] having a lodge system with ritualistic form of work and representative form of government, and which makes provision for the payment of death or disability benefits,, or for both, is hereby declared to be a ‘fraternal benefit society,’ which shall be held to be synonymous with a ‘mutual benefit society.’ . . Sub. 9, sec. 1956, provides: “Exemption from general laws. Unless express reference is made to this subsection or unless expressly designated therein, no law now in force or hereafter enacted, shall apply to any fraternal benefit society or mutual benefit society.” It is correctly said in the learned decision of the circuit judge: “There is no reference in sec. 1977 to sec. 1956. While one legislature cannot bind or control successive legislatures, laws amending, modifying, or. limiting the scope of application of laws passed by a preceding legislature are valid. If sec. 1977, by its terms, contained no limitation whatever, it could not apply to fraternal benefit societies because of the language of sec. 1956. But sec. 1977 does contain a limitation. It specifically provides that ‘this section shall not apply to agents of licensed beneficiary societies,’ and there is no limitation to societies organized in this state, as claimed by •the plaintiff.” This case is ruled by the case of McKnelly v. Brotherhood of American Yeomen, 160 Wis. 514, 152 N. W. 169. The Statutes of Kansas on the subject are substantially like our own and contain what is known as ch. 23 of the Laws of 1898, incorporated as a part of sec. 4303, Stats. 1909, and 'which provides as follows: “Such association [meaning the fraternal benefit society] shall be governed by this act and shall be exempt from the provisions of other insurance laws of this state, and no law hereafter passed shall apply to them unless they be expressly designated therein.” Quoting the above statute, Mr. Chief Justice Winslow in the opinion of the court then says: “Now, while one legislature cannot control its successors as to the manner in which they shall legislate, this provision [527] is nevertheless very significant as an indication of legislative policy, and its continued existence unrepealed is fairly persuasive proof that the policy there expressed has been and still is adhered to. Taken in connection with the clear indications on the face of the sections themselves, we are convinced that they were not intended to apply and do not apply to certificates issued by fraternal beneficiary societies.” By the Court.- — -The judgment of the circuit court is affirmed.