Soroko v. Woodmen of World , 1921 Pa. Super. LEXIS 146 ( 1921 )

Opinion by

Keller, J.,

Defendant, ah incorporated fraternal beneficial association, on June 30, 1915, issued its beneficiary certificate to Harry Soroka, agreeing to pay his wife, the plaintiff, out of its beneficial fund, in case of his death while in good standing as a member of the association, an amount varying from $500 to $1,000, depending on tbe number of years be bad been a member at tbe time of bis death. He died January 18, 1917, at wbicb date under tbe certificate bis wife became entitled to $750. Payment having been refused she brought suit. Tbe only defense to tbe action was that in bis application for membership Soroka bad represented bis occupation to be “Labor outside” and bad paid dues of only $1.45 per month, whereas be was in fact a miner and should have paid tbe rate for a hazardous occupation, $1.75, per month. Tbe plaintiff proved by two witnesses that her husband could not read or write English; that tbe blanks in tbe application bad been filled in by tbe clerk of tbe camp, in tbe presence of tbe commander or presiding officer; that Soroka when asked what be was working at, said “I am working in tbe mines; you know that, and so does Mike (tbe commander).” Tbe application when completed was not read to tbe applicant but was forwarded to tbe Sovereign Camp and no copy of it was attached to tbe beneficiary certificate nor was bis occupation stated therein. Tbe deceased regularly paid tbe dues called for by tbe certificate. Tbe learned trial judge instructed tbe jury that to entitle tbe plaintiff to recover they must find by evidence that was clear and satisfactory that Soroka truthfully stated to tbe clerk that be was a miner engaged in working in tbe mines and that by some inadvertence or error on tbe part of tbe clerk tbe application bad been filled out by him as it was, without fault on Soroka’s part; that they must find that Soroka could not read or write tbe English language and bad acted in tbe utmost good faith and without any purpose to take advantage of tbe defendant company; and if they found for tbe plaintiff they must deduct from tbe amount of tbe certificate tbe extra payments wbicb Soroka would have made as a miner. Tbe defendant assigns for error tbe admission of tbe above evidence, tbe trial judge’s instructions to tbe jury and bis failure to give binding instructions for tbe defendant or enter judgment in its favor non ob-stante veredicto.

Tbe contract between tbe parties was made np of tbe application for membership, including tbe medical examination, tbe beneficiary certificate and tbe charter, constitution and by-laws of tbe association. Tbe application is specifically stated to consist of two pages, to both of which Soroka affixed bis mark. It sets forth certain occupations which are hazardous and certain others which are prohibited; a miner, or worker in the mines, was not mentioned in the application as being in either the hazardous or prohibited classes. Nor were the dues to be paid for either a hazardous or nonhazardous occupation stated therein. The instructions to the clerk and examining physician printed on the back of the application form no part of it, so as to affect the applicant, for it distinctly limits its effect as respects the applicant to the two pages signed by him and the examining physician’s report, which is contained in the third page, and there was no evidence that the instructions endorsed on the application were read or made known to the applicant.

The constitution (sec. 43) includes “those employed in mines not otherwise prohibited,” among those whose certificates shall not exceed $2,000, and provides “and their rate of assessment shall be thirty cents for each one thousand dollars of their beneficiary certificate in addition to the regular rate while so engaged in such hazardous occupations” thus impliedly classing these occupations as hazardous, but the monthly amount to be paid by such members is not definitely stated in figures. The same section also provides: “(b) If a member engages in any of the occupations or business mentioned in this section he shall within thirty days notify the clerk of his camp of such change of occupation and while so engaged in such occupation shall pay on each assessment thirty cents for each one thousand dollars of his beneficiary certificate in addition to the regular rate. Any such member failing to notify the clerk and to make such payments as above provided shall stand suspended and his beneficiary certificate be null and void.”

It will be noted that working in the mines was not a prohibited occupation and consequently those decisions which hold that an error on the part of an agent of an insurance company or association in filling out a blank or entering an answer of the applicant will not bind the company or association so as to effect insurance upon one who by reason of his age or occupation is absolutely prohibited from being insured at all, do not apply.

Further, the clerk of the camp was not merely the agent of the defendant association rather than of the applicant: Columbia Ins. Co. v. Cooper, 50 Pa. 331, p. 340; Eilenberger v. Protective Mutual Fire Ins. Co., 89 Pa. 464; but he was the very person selected and pointed out by the constitution as the authority to whom notice of change of occupation to one considered hazardous must be given. No one’s consent or permission to make the change was required and no higher agent or authority than the clerk of the local camp had to be notified of such change. He was therefore peculiarly the agent or representative of the defendant association in this re< spect: Knights of Pythias v. Withers, 177 U. S. 260; and his error in the circumstances should not be visited on an illiterate applicant for membership, without knowledge of the laws and regulations of the order to which he is seeking admission, who has truthfully stated the facts to the defendant’s agent, unless the decisions require it.

It has long been the law of this State that evidence is admissible to prove that an applicant for insurance made truthful answers to the questions contained'in the application and that the agent of the company erroneously reduced them to writing: Smith v. Farmers’ and Mechanics’ Mutual Fire Ins. Co., 89 Pa. 287; Susquehanna Mutual Fire Ins. Co. v. Cusick, 309 Pa. 157; Mullen v. Union Central Life Ins. Co., 182 Pa. 150; Suravitz v. Prudential Ins. Co., 244 Pa. 582; Feinberg v. N. Y. Life Ins. Co., 256 Pa. 61; and this applies to answers which are warranties no less than to mere representations: Kister v. Lebanon Mutual Fire Ins. Co., 128 Pa. 553; Dowling v. Merchants’ Ins. Co., 168 Pa. 234; Fidelity T. & T. Co. v. Metropolitan Life Ins. Co., 64 Pa. Superior Ct. 361; and especially so where, as here, the applicant is illiterate, cannot read or write, and must rely on the good faith and accuracy of the agent: Carrozza v. National Life Ins. Co., 62 Pa. Superior Ct. 153; but the evidence to be submitted to the jury must be clear and satisfactory: Suravitz v. Prudential Ins. Co., 261 Pa. 390.

There are essential differences between insurance companies and fraternal beneficial associations, but there is no reason why the rule just referred to should not apply to the latter as well as the former; and we find this to be the case in other jurisdictions. Thus it has generally been held that it may be shown that the applicant for admission to a beneficial association truthfully answered the questions put to Mm by the medical examiner and that the latter failed to enter the answers as given, even though the applicant warranted the truth of such answers: Royal Neighbors v. Boman, 52 N. E. 264 (Ill.) ; Shotliff v. Modern Woodmen, 73 S. W. 326 (Mo.); Thomas v. Modern Brotherhood, 127 N. W. 572 (S. D.); and the same rule applies to answers written on the application by the clerk, secretary or other officer of the beneficial association: Modern Woodmen v. Lawson, 65 S. E. 509 (Va.); Masonic Life Assn. v. Robinson, 147 S. W. 882 (Ky.); Order of Columbus v. Fuqua, 60 S. W. 1020 (Texas); the reason being that the medical examiner, clerk or officer of the association is necessarily the agent of the association and not of the applicant and his error must be chargeable to his principal, and his knowledge, in the circumstances, held to be the knowledge of the association: Foresters v. Schweitzer, 49 N. E. 506 (Ill.); Modern Woodmen v. Coleman, 94 N. W. 814 (Neb.); Pringle v. Modern Woodmen, 107 N. W. 756 (Neb.); Knights of Pythias v. Bridges, 39 S. W. 333 (Texas); Sovereign Camp, Woodmen of the World v. Carrington, 90 S. W. 921 (Texas); Rasicot v. Royal Neighbors, 108 Pac. 1048 (Idaho). The association is estopped from taking advantage of its own agent’s mistakes : Keystone Mutual Ben. Assn. v. Jones, 20 Atl. 195 (Md.); McArthur v. Home Life Assn., 35 N. W. 430 (Iowa); Wright v. N. W. Mutual Life Ins. Co., 15 S. W. 242 (Ky.).

We have carefully considered all the authorities cited by the appellant and none of them sustain its position in this appeal. In Sovereign Camp, Woodmen of the World v. Hall, 148 S. W. 526 (Ark.), the applicant falsely stated that he was a farmer, whereas he was actually a saloonkeeper, a prohibited occupation. It was held that the fact that the medical examiner knew of his occupation did not bind the association, since he had not stated his occupation as a part of his medical examination; but the court there said that as to such matters as were embraced in the medical examination, the knowledge of the medical examiner was the knowledge of the association and would estop it to take advantage of any false answers in such examination.

In Simmons v. Woodmen of the World, 188 S. W. 941 (Tenn.), the insured changed his occupation from farmer to the hazardous occupation of locomotive engineer without notice to the local lodge officers.

In Brittenham v. Woodmen of the World, 167 S. W. 587 (Mo.), the court recognized that even in a fraternal beneficial association forfeitures are not favored and that the contract must be construed strictly against the insurer, but held there could be no recovery because the applicant after he became a member engaged in a prohibited occupation, of which fact he gave no notice to the proper official.

In none of the decisions on the appellant’s brief were the facts in accord with the present case.

It is true the insured paid only the rate required of those engaged in nonhazardous business, hut that again was the fault of the defendant’s agent. Soroka paid what he was told by its agent was the correct rate and was not in default. The officer charged with the duty of notifying the members of assessments is the agent of the Supreme Lodge: Knights of Pythias v. Davis, 58 Pac. 595 (Colo.) ; and under the instructions of the court allowance was made the defendant for the correct rate in the yerdict.

Being a beneficial association, the defendant was not bound to attach a copy of the application to its certificate : Dickinson v. Grand Lodge, 159 Pa. 258; but it not haying been attached the member could not be charged with notice of the error made by the defendant’s agent.

We are of opinion that the court below did not err in reeeiying the evidence complained of, that the charge fairly presented the questions of law involved, and that the case was properly for the jury.

The assignments of error are overruled and the judg ment is affirmed.