Brotherhood of Painters, Decorators & Paperhangers of America v. Barton , 46 Ind. App. 160 ( 1910 )

Comstock, C. J.

Appellees, as heirs at law of Herbert Sturtevant, sued appellant to recover the snm of $200, to which, it is alleged, they were entitled, by reason of the membership of said Sturtevant in appellant association.

The complaint alleges that appellant is a corporation engaged in the business, among other things, of insuring the lives of its members, and had been so engaged for a period of ten years; that there was vin force, during said period, certain by-laws duly enacted by appellant, as follows:

“Section 93. A full beneficial member, not over fifty, years of age and in sound health when admitted to membership, shall be entitled to benefits as follows: Wife’s funeral benefit of $25 on one year’s membership, and $50 on two or more years’ membership; member’s death or permanent total disability benefit of $50 on one year’s membership; $100 on two years ’ membership; $150 on three years ’ membership and $200 on four or more years’ membership, provided the member has not been indebted for an amount equal to three months’ dues, but has been in continuous good standing during the period for which benefits are claimed immediately preceding his death or disability or his wife’s death. * * * On the death of a member legally in benefit, his wife, if not separated or divorced, or legal heirs shall be entitled to the member’s funeral benefit as prescribed in this constitution. ’ ’

In 1903 said Sturtevant, being forty years of age, became a member of appellant association, paid the required admission fees, and thereafter paid regularly all fees, dues and assessments and performed all the conditions required of him by the terms of his contract with appellant until February 19, 1907, when he died. In March, 1907, proofs of death were made out and delivered to appellant, which denied liability, solely on the ground that Sturtevant came to his death from a cause, which, under the by-laws, did not admit of benefits.

Appellant answered in two paragraphs. The first alleges that during Sturtevant’s membership appellant’s constitution contained the following provision:

“Section 103. Any member or wife of member whose disability or death is caused by his or her improper conduct or through disease incurred previous to his joining the brotherhood, or through his exposing himself to risks to which’members are not usually liable (his country’s service in time of war, excepted), shall not be entitled to any benefits from the brotherhood, nor shall their legal heirs or beneficiaries be entitled to any benefits.”

That appellees are not entitled to recover, for the reason that Sturtevant’s death was caused by his own improper conduct in the use of intoxicating liquors, and that his death was caused by acute alcoholism, resulting from such improper use.

The second paragraph attempts to answer so much of the complaint as seeks to recover more than $50. It alleges that appellant is not an insurance company, but is a beneficial order depending solely upon the fees and dues paid by members for its maintenance; that the monthly dues payable by Sturtevant were seventy-five cents, payable on or before the last day of each month; that during his membership in appellant association section forty-six of its constitution was as follows:

“Any member indebted for three months’ dues, or an amount equal to three months’ dues, shall stand suspended, a vote of the L. U. not being required to suspend him. TIis membership book, shall be deemed sufficient notice of arrears, and no further notice will be required from, the financial secretary. A suspended member shall not be again placed in benefits until six months from the date of settling in full all arrearages. Members suspended during the first year of membership shall not be entitled to benefits until they have been eighteen months in membership. No member shall be credited with dues until all fines, assessments and other indebtedness against him are paid in full. Dues received between meeting nights shall be credited on the day they are received. ’ ’

Said paragraph also sets out section ninety-three of appellant’s constitution as set out in the complaint, and alleges that Sturtevant failed to pay his dues, for the months of January, February and March, 1905, when they became due, and did not pay the dues for any one of said months until April 5, 1905, by reason whereof he was on April 1, 1905, indebted to appellant for three months’' dues, and, by the provisions of said section forty-six, became suspended, and thereupon ceased to be a member of defendant and did not thereafter become a full beneficial member until the expiration of six months from the date of the payment of such arrearages, or October 5, 1905.

Appellees replied in two paragraphs. ■ The first a general denial. The second alleges that appellant waived the suspension of Sturtevant for failure to pay his dues, as alleged in the second paragraph of answer, and for his failure to pay said dues prior to the time they were paid; that appellant accepted the dues for said months of January, February and March on April 5, unconditionally, and as being in full compliance with the terms of the contract, to the same extent as if they had been paid prior to the first day of April and treated the dues when so paid as having been paid before said dues, or any of them, were three months due, and thereby waived the suspension of Sturtevant as provided in the constitution.

A demurrer was overruled to the second paragraph of reply for want of sufficient facts, and the cause was submitted to trial by a jury, resulting in a verdict in favor of appellees for $200. Over appellant’s motion for a new trial, judgment was rendered thereon.

The errors relied on for a reversal are, the insufficiency of the second paragraph of reply, error of the court in instructing the jury, and the rejection of certain evidence offered by appellant.

1. Against the sufficiency of said paragraph of reply, it is argued that it does not state any facts amounting to a waiver, and that under the construction of section ninety-three of appellant’s constitution, and the complaint, the question of waiver did not arise in the case.

Said paragraph alleges that appellant company waived the suspension of said member by accepting, unconditionally, payment of the dues for January, February and March, prior to April 5, 1905, the date at which said dues were paid, as being in full compliance with the terms of the contract to the same extent as if they had been paid prior to April 1, and treated them when so paid as having been paid before said dues or any of them were three months due, and thereby waived the suspension of the member for failure to pay said dues prior to the time they were paid and any loss of rights on his part or on the part of his beneficiaries by reason of said failure to pay. 'It has been held by this court that a statement that a party waives a certain right is the statement of a fact. German-American Ins. Co. v. Sanders (1897), 17 Ind. App. 134, 138. The question of waiver is one of intention, but we are of the opinion that the facts stated are sufficient to create a waiver. Upon the subject of waiver of forfeiture, we cite the following cases: Supreme Court of Honor v. Sullivan (1901), 26 Ind. App. 60; Supreme Tribe, etc., v. Hall (1900), 24 Ind. App. 316, 79 Am. St. 262; Supreme Tent, etc., v. Volkert (1900), 25 Ind. App. 627; Brotherhood of Painters, etc., v. Moore (1905), 36 Ind. App. 580; German-American Ins. Co. v. Yeagley (1904), 163 Ind. 651.

2. It is claimed that the court erred in giving instructions three and five, requested by appellees. In said third instruction the jury was told that appellant to sustain its defense — that the member came to his death by his own improper conduct — must show that such improper conduct, to wit, the excessive use of alcohol, was the proximate cause of his death. Appellant contends that it is sufficient to show that such improper conduct contributed to his death.

Provisions of forfeiture are, as a rule, strictly construed as against the insurer. In 25 Cye. 876, the editor says: “Where the company seeks relief from liability on account of a death expressly or impliedly excepted from the terms of the policy, it must appear in order to sustain the defense that the death was the proximate result of a prohibited cause. ’ ’

3. Instruction five is as follows: “You are further instructed that if the local union officer who collected the assessments for January, February and March, 1905, collected the same unconditionally, and as being in full compliance with the terms of the contract, and as having been paid when due, and did not treat said payment as having been made when three months in arrears, but treated the same as having been paid prior to April 1, 1905, and did not report said member as suspended, and that the head officers did not know of these facts, and of the acts and conduct of said decedent, until the receipt of proofs of death, yet upon receipt of this information they did not repudiate the acts of said local union officer, and did not offer to return the money so collected, or any money thereafter collected, and thereby ratified the acts of said officer of said local union and estopped themselves from setting up said defenses — then if you find for the plaintiff you will assess, ’ ’ etc. Under the evidence there was no error in this action of the court. United States, etc., Soc. v. Watson (1908), 41 Ind. App. 452.

4'. Appellant insists that its instructions three and four should have been given. Said third instruction would have told the jury that under defendant’s constitution any member indebted for three months’ dues, or an amount equal to three months’ dues, should be suspended and not again placed in benefits until six months from the date of settling all arrearages, and if the jury found from the evidence that on April 1, 1905, decedent was indebted for three months’ dues, or an amount equal thereto, he became suspended, and was not a beneficial member until the expiration of six months from payment of said arrearages; that if it found that this payment was not made till April 5, 1905, decedent would not again become a beneficial member until six months from that date, and, under the constitution, would be entitled to only $50 benefits provided for a membership of one year in good standing.

Said fourth instruction would have told the jury that if the evidence showed that on April 1, 1905, decedent was in arrears for three months’ dues, which were not paid until April 5, 1905, then, nncler the constitution of defendant, plaintiffs were not entitled to recover more than $50. These instructions were properly refused.

5. Complaint is made of the refusal to permit appellant to introduce in evidence the record of the board of health of the city of Evansville, on the question of the cause of death of decedent.

In the case of Craiger v. Modern Woodmen, etc. (1907), 40 Ind. App. 279, this court held .that a coroner’s verdict, although attached to proofs of death made by the beneficiary in conformity to blanks furnished by the company, was not admissible in evidence, and in the case of Union Cent. Life Ins. Co. v. Hollowell (1896), 14 Ind. App. 611, that there was no error in refusing to allow appellee to read in evidence a certified copy of the inquest of the coroner, upon the ground that the taking of the testimony was ex parte, and was not admissible as affirmative evidence in support of appellant’s defense. The question here presented is within the principle of these cases.

It is claimed, in behalf of appellant, that the evidence was admissible under the acts of 1907 and 1909 (Acts 1907 p. 246, §1, §7607 Burns 1908, and Acts 1909 p. 342).

Said acts, among other things, make it the duty of all physicians to report to the health officers named therein, upon blank forms supplied by the state board of health, all deaths and births which occur under their supervision. They provide that all records of deaths shall be kept by the proper health officers in record books, the form of which shall be supplied by the state board of health; that any physician refusing or neglecting to make death reports, as provided in said acts, shall, upon conviction, be fined; that where a death occurs under the supervision of any superintendent or head of any institution, it shall immediately be reported by him, upon an official certificate, to the proper health officers. They also provide for the recording of marriages, births and contagious diseases, and that the state board of health shall collect and tabulate the vital statistics.

The title of the act of 1907, supra, to wit, ‘ ‘ an act to collect accurate records of deaths, births, contagious diseases and marriages, prescribing the duties of the state board of health .and of all health officers, in relation thereto, providing penalties for the violation of the provisions of this act, and repealing all acts in conflict,” discloses its purpose. It was enacted in the exercise of the police power of the State to prevent the spread of contagious diseases, and generally to promote the public health. Within its legitimate objects and purposes, the record proved is proper evidence. Blue v. Beach (1900), 155 Ind. 121, 50 L. R. A. 64, 80 Am. St. 195. It does not purport to interfere with private rights of citizens, not to create a new rule of evidence.

In the case of Beglin v. Metropolitan Life Ins. Co. (1903), 173 N. Y. 374, 66 N. E. 102 (reversing Beglin v. Metropolitan Life Ins. Co. [1901], 57 App. Div. 629, 68 N. Y. Supp. 1133), the action was brought to recover on a policy of insurance on the life of Catherine T. Beglin. It was there said: “The written application contained, among other questions, the following: ‘ Has either parent or any brother or sister died of consumption or any pulmonary or constitutional disease?’ To this question the applicant answered in the negative. * * * Upon the trial the defendant offered in evidence a certified copy of the 'records of the board of health of the city of Albany for the month of January, 1889, and this was followed by an offer of the original record. The receipt of these records was objected to upon the ground that they were hearsay. * * * The records were to the effect that the mother of [the insured] died in the city of Albany on the 2d day of January, 1889, and that the chief cause of death was phthisis pulmonalis.” It was further said: “We shall not stop to consider that question [whether the local or general law was in force], but shall assume that the general statute was in force, and that it required a registration of births, marriages and deaths, including the cause of death; and that this record was made prima facie evidence of the facts therein set forth. This statute was a police regulation, required for public purposes and became prima facie evidence so far as concerns questions arising under its provisions which involve public rights. But we think it was not the intention of the legislature to change the common-law rule of evidence in controversies of private parties growing out of contract, and that the provisions of the statute sjiould not be construed as applicable to such cases. This, in effect, was what we held in the case of Davis v. Supreme Lodge, etc. [1900], 165 N. Y. 159, 58 N. E. 891, also in Buffalo Loan, etc., Co. v. Knights Templar, etc. [1891], 126 N. Y. 450, 27 N. E. 942, 22 Am. St. 839. The question here presented was elaborately discussed in the case of Davis v. Supreme Lodge, etc., supra, and we regard it.as controlling upon the question now presented. ”

In the case last cited, counsel for defendant produced the records of the board of health of Brooklyn, which were identified by the clerk of the department, §nd offered to prove, by the original certificate filed by the attending physician, the cause of death of certain relatives of the insured. The court inquired if the evidence was offered to prove the cause of death, and defendant’s counsel replied that it was. The court thereupon excluded the record. The court said: ‘1 It should be noted also, that it was not offered to prove the fact of death, since there was no issue on that question, but solely to prove the cause of death, and that too not in any local matter over which the health department had jurisdiction, but in a controversy concerning the enforcement of a contract obligation between private parties in a court of general jurisdiction. This local statute, when reasonably and properly construed and understood, and limited to the purpose for which it was enacted, does not in my opinion, abolish any part of the code or affect any general rule of evidence applicable throughout the state at the time of its enactment.” It is also said in the same case: “Like all the rest of the charter it is local in its operation and limited to the boundaries of the city. It is a law for the city and the health department, and not for the state. The collection and tabulation of vital statistics is one of the functions which the state has delegated to the health department in the locality, but there was no intention to abolish a general rule of law relating to evidence generally, and to substitute a new one in its place, as the learned counsel for the defendant contends. It may well be that the records are competent to prove the fact of death, or prove marriages or births. It is quite possible that in some cases they might be competent on questions relating to pedigree. These facts could always, at common law, be established by a species of hearsay evidence, but the cause of death in a litigation between private parties, concerning the obligations of a contract of life insurance, must be established, when material, by common-law proof, and that is precisely what this court has held. ’ ’

In the case of Sovereign Camp, etc., v. Grandon (1902), 64 Neb. 39, 89 N. W. 448, an ordinance of the city of Omaha made it the duty of every undertaker or other person, before removing any corpse for burial, to obtain from the secretary of the board of health a permit to do so, and provided that before obtaining such permit, he should deposit with said secretary a certificate setting forth, among other matters, the cause and date of death, and the duration of last illness of decedent, which certificate should be signed by the physician or surgeon in attendance at the time of death. In case no physician or surgeon had attended decedent, then the certificate should be made by some relative or attendant. The court said: “It is a mere police regulation, and is not intended for the purpose of supplying the public at large with information upon which reliance may be placed in the business affairs of the community. We do not think the record is of such character as to entitle it to be received in evidence, as affecting the interest of a party to a litigation. * * * If signed by a physician, it contains matter relating to his patient which the physician is not allowed to disclose as a witness upon the trial against the objection of his patient or those representing him. That a record of this character, reciting privileged communications, may be used in evidence against a party where the testimony of the physician making it could not be received, is a proposition so inconsistent with reason and natural rules of justice that we cannot give our consent thereto.”

In the case of Buffalo Loan, etc., Co. v. Knights Templar, etc. (1890), 56 Hun 303, 9 N. Y. Supp. 346, 347, the court said: “There is no rule making the records or books of the board of health evidence as to the cause of death on the trial of an action at law where that question is material. Nothing but common-law evidence would defeat a recovery in the absence of a statute or constitutional provision making other evidence competent. There is no law making the records of the board of health of the city of Buffalo evidence upon a trial between parties who do not make the records or books, and have no duty devolving on them on that subject.”

Whether evidence of the character in question is required to be kept by virtue of a municipal ordinance authorized by statute, or by statute, can make no difference in principle. In each instance, it is an attempt to prove, by ex parte testimony, a material fact in a case between private parties who are strangers to the record. In the absence of a positive declaration on the part of the legislature it will not be presumed that the rights of private citizens are to be foreclosed by the opinion of a public health officer, contrary to the general rule of evidence, however learned or conscientious that officer may be.

In the ease of Rohloff v. Aid Assn., etc. (1906), 130 Wis. 61, 109 N. W. 989, the exclusion from the consideration of the jury of a certified copy of the certificate of the death of decedent, made by the witness Doctor Ellsworth and the health officer, and filed in the register’s office, as required by §§1024, 1024a Wis. Stat. 1898, was upheld, aud such evidence was held incompetent.

The decisions upon this question are not in harmony, but those heretofore cited and quoted from sustain the ruling of the trial court, and, we believe, are supported by the best reasoning. Those to the contrary, for the most part are based upon the theory that all public records are, as a rule, admissible in evidence, and do not discuss the manifest conflict between such evidence and the statutory and common-law rule, which makes privileged the knowledge of a physician acquired in his professional capacity.

In the following cases it has been held that evidence of this character is competent. Hennessy v. Metropolitan Life Ins. Co. (1902), 74 Conn. 699, 52 Atl. 490; State v. McDonald (1909), (Or.), 104 Pac. 967; Allen v. Kidd (1908), 197 Mass. 256, 84 N. E. 122; Vanderbilt v. Mitchell (1907), 72 N. J. Eq. 910, 67 Atl. 97, 14 L. R. A. (N. S.) 304; State v. Pabst (1909), 139 Wis. 561, 121 N. W. 351. They are based upon the proposition that they are public records, and upon the theory that ‘ ‘ it would always be difficult, and often impossible, to prove facts of a public nature, by means of actual testimony upon oath.” 1 Greenleaf, Evidence (Lewis’s ed.) §483.

The public is interested in tabulated vital statistics which,, as a rule, may be approximately correct. The rights of the public, by this wholesome law, are subserved when they have the benefit of the facts collected under its provisions, but no public interest is promoted in the use of such data to prevent or retard (contrary to established rules of evidence) the assertion of private rights between individuals and in which the public has no concern.

Judgment affirmed.

Watson, P. J., Myers and Rabb, JJ., concur. Roby and Hadley, JJ., dissent..