Koerts v. Grand Lodge of Wisconsin of the Order of Hermann's Sons

97 N.W. 163, 119 Wis. 520, 1903 Wisc. LEXIS 133

• Court: Wisconsin Supreme Court
• Decided: November 17, 1903
• Status: Published

Opinion

WiNsnow, J.

The fundamental law governing the mortuary fund when the deceased member received his certificate provided in no uncertain terms that the mortuary fund was established for the benefit of the “survivors” of a member. This law remained unchanged up to the time of the death of Pluns, and he was doubtless charged with knowledge of its terms, and must be held to have consented thereto'. The first important question in the case manifestly is, therefore, as to the meaning of the word “survivors.” Eeference to the various sections of the code itself shows that the word is used three times in as many different sections. The first section states that the purpose of the mortuary fund is that out of it shall be paid to the “survivors” of a member after his death the sum of $1,000. The twelfth section provides that in case of -the death of a member whose “survivors” shall not possess a death benefit certificate the mortuary benefit shall only be paid to one who produces an order from the proper court. The thirteenth section provides that, in case a member shall die whose “survivors” shall produce a death benefit certificate, the recipients shall, on payment, sign, a certain prescribed receipt. The word must necessarily be given the same meaning in the various sections. It cannot be supposed for a moment that it was used' in one sense in one section and in a totally different sense in another section of the same code, treating of the same general subject. Bearing this in mind, it seems that there can be little doubt but that the word was used as referring to a limited class of persons. Whatever doubt there might be on this point were we considering the provisions of the first section alone, is readily dispelled when we consider the provisions of the twelfth and thirteenth sections. These last-named sections unquestionably refer to some definite class of persons as “survivors.” Moreover, this conclusion is greatly strengthened when we consider the sense in which the word is commonly used. It is true that, broadly speaking, the word “survivors” includes all persons who outlive another. It is equally true that in common parlance it is universally applied only to members of a class of persons. Thus we speak of the survivors of a shipwreck, or a battle, or a railroad accident, not thereby referring to the whole surviving human race, but only to the class of people who participated in the given occurrence. So, in speaking of the death of a person, we frequently say that he left surviving his widow and certain children or other relatives. We can entertain no doubt but that the word “survivors,” as used in the mortuary fund code, has some such limited significance as this. Just what relatives or connections it includes may not be easy of determination, but it seems very certain that it does not include one who, like the respondent, was neither a relative of the deceased, nor a member of his household, nor connected with him by marriage.

The effect of this conclusion as to the meaning of the word “survivors” is yet to be considered. It does not necessarily follow that the beneficiary named in the certificate cannot recover merely because she is not one of the class named in the mortuary code of the order. In the absence of an- absolute statutory prohibition, or a violation of public policy, a mutual benefit society cannot defend on this ground where it has knowingly issued a certificate payable to such a beneficiary, and the assured has fully performed the contract on his part. Ledebuhr v. Wis. T. Co. 112 Wis. 657, 88 N. W. 607. But this is not the question here presented. In the present case it was falsely represented to the respondent’s officers that the beneficiary was one of the class for. whose benefit the mortuary fund was established, and the officers relied thereon,, and issued the certificate accordingly, and never ascertained the falsity of the representation until after the death of the assured. This makes a very clear case of fraud. The certificate never would have been issued in favor of the respondent except for the false representation. Her right rests upon the certificate alone, and when it is shown that its issuance in her favor was procured by fraud her claim must necessarily fall.

By the GouH. — Judgment reversed, and action remanded with directions to render judgment for the appellant in accordance with this opinion.