Lathrop v. Modern Woodmen of America

126 P. 1002, 63 Or. 193, 1912 Ore. LEXIS 215

• Court: Oregon Supreme Court
• Decided: October 15, 1912
• Status: Published

Opinion

Mr. Justice McBride

delivered the opinion of the court.

1,2. From the foregoing facts we conclude that deceased at the time the certificate arrived at the office of the local camp clerk and up to the time .of his death was not in default for nonpayment of current dues or the November assessment, which he was not compelled to pay until the next assessment should be levied, to wit, until December 1, 1906. It therefore follows that he was entitled to the unconditional delivery of his policy at the date it was received. This being the fact, the case hinges upon one proposition, viz., Did the failure of the clerk to deliver the policy into his actual possession, while in good health, render it ineffective? Such was the view this court was disposed to take at the last hearing; but on rehearing a majority of the court inclined to the view expressed by Mr. Justice King, which is the latest exposition of our views on this subject, that, where the applicant for a policy had complied with all conditions required by the by-laws and was not in any way in default, the deposit of the policy with the clerk of the local camp, to be delivered to the applicant upon his compliance with the by-laws, constituted a delivery to him. The clerk of the local camp is expressly declared by the by-laws not to be the agent of the head camp. He is a mere custodian of the policy for the purpose of exacting any dues or assessments that may be payable, and, if none are payable and the applicant is in good health, he is a mere, naked trustee for the applicant. We take it that from the date of its reception the applicant, whose current dues had been paid, was a full-fledged beneficial member, subject to all the liabilities and entitled to all the benefits of any other member, and that he would have been liable to the discipline of the camp, and perhaps to a civil action for the November dues had he failed to pay them before December 1st. The provision for delivering to him in person was intended (1) to secure the payment of current dues (which in this instance had been paid) ; and (2) to prevent the policy going astray by being placed in the custody of an improper person. The latter was for the protection of him and his beneficiary. The authorities supporting this view are cited in the opinion of Mr. Justice King, and need not here be recapitulated. Most of the cases cited by counsel for appellant may, as we shall proceed to show, be distinguished from the case at bar. For instance, in McLendon v. Woodmen of the World, 106 Tenn. 695 (64 S. W. 36: 52 L. R. A. 444), the applicant was taken sick before the certificate was issued and sent to the local camp, and died before it was i*e-ceived there. The court held that there was no delivery. Here the certificate was issued by the defendant and received by the local clerk while the applicant was in good health, and nothing remained to be done but the act of placing him in physical possession of it.

In Wilcox v. Sovereign Camp W. O. W., 76 Mo. App. 573, the applicant appeared at the office of the local clerk, and said he was ready to pay the dues and assessments required, but made no tender of the amount, and delivery of the policy was postponed by his consent because the consul commander was not in, whose custom it was to sign the certificates. Pending such delivery he was drowned; and the order, in the plenitude of its fraternal benevolence, defended on the ground that his assessments had not been paid or tendered, and that the certificate had not been delivered. In that case the dues had not been paid. Considering the fact that the applicant in that case was present at the time appointed, requesting the delivery of his certificate and expressing his willingness to pay his dues then and there, the technical holding that he had not actually tendered the money, and-was, therefore, in default, while possibly the law certainly operated to work a great moral injustice. In Kohen v. Mutual Reserve Fund Life Ass’n (C. C.) 28 Fed. 705, the applicant filed his application for a policy in a New York insurance company, with its local agent in Missouri, on November 7th, and underwent the required medical examination, paying his initiation fee, annual dues, and examination fee to the local agent. The application was received at the New York office on November 9th, and on the 10th was approved by the medical director, and on the same day was approved by one member of the executive committee. On the 10th of November the applicant was shot in St. Louis, and, in consequence of a telegram to that effect, the executive committee, on the 10th or 11th of November, erased the word “Affirmed” from the application and wrote “Declined,” and the matter proceeded no further. The applicant died on the 12th of November. No policy was ever issued, and, in fact, the man was dead before any policy could have issued and been sent to him in the ordinary course of business. The case is not in point here. In Michigan Mut. Life Ins. Co. v. Thompson, 44 Ind. App. 180 (86 N. E. 503), the policy provided that it should not take effect unless the insured should be in good health at the time of its delivery. No premium had ever been paid, nor any note given for such premium. Previous to the arrival of her policy at the office of the local agent, she became seriously ill from the bite of a poisonous spider, from which illness she ultimately died. The court sustained the action of the local agent in refusing to deliver the policy, saying that such delivery would have been a violation of the contract in fcwo particulars:- (1) That part thereof requiring the payment of the premium; and (2) that it should be delivered while the applicant was in good health. It will be noted again that this case differs from the case at bar in both these particulars, Lathrop being in good health at the time the policy was received at the local office, and not being in default for dues or assessments. The court in this case, however, states the law in regard to deliveries quite as strongly as plaintiff’s counsel contends for it in the case at bar, saying:

“The receipt by an agent from his insurance company of a policy to-be unconditionally delivered by him to an applicant is in law tantamount to a delivery to the insured, though the agent never surrenders possession of the policy, and though its delivery to the applicant is by contract made essential to its validity.”

In Owens v. Modern Woodmen of America (Tex.) 130 S. W. 859, the application was filed on the 25th of September, and on the 27th of the same month the applicant was taken sick with typhoid fever, of which he died on the 18th day of October. The policy arrived at the local camp the day before his death. Under these circumstances, the court held that the delivery to the local clerk was.not a delivery to the applicant.

It will be noted that in all these cases either something remained to be done or paid by the applicant, or that he was not in good health when the local clerk or agent received the policy. We have been cited to no case where the applicant, not in default for dues or assessments and being in good health at the time the local clerk received the policy, has been held to have been uninsured, and, if such a case should be found, we would decline to follow it; but would hold, as we now hold, that under such circumstances a delivery to the local clerk for the applicant is a sufficient delivery.

The judgment of the circuit court is affirmed.

Affirmed.