Sovereign Camp Woodmen of World v. Richardson

McCulloch, O. J.,

(dissenting). An express waiver is the voluntary surrender of a right with knowledge of all the facts affecting the assertion of that right. Implied waiver is but another name for estoppel by inconsistent or misleading conduct. 7 Cooley’s Brief on Insurance p 2462.

If Mr. Newberry made the statement attributed to him (which I do not deem it necessary to discuss), there is still no element of estoppel or implied waiver involved, for his conduct and statement only amounted to an agreement that the society would not enforce the so-called “war clause.” If the statement amounted to anything at all, it was an express waiver, and, if it be enforced, it is tantamount to permitting a soliciting agent of such society to waive, in advance, an express provision of the by-laws. An implied waiver or estoppel by misleading conduct must, in order to be effective, relate to a present or past incident, for if it relates to future conduct it is necessarily promissory in its effect. Home Fire Ins. Co. v. Wilson, 109 Ark. 324. This distinction is clearly pointed out in the decision of the Supreme Court of the United States in Insurance Company v. Mowry, 94 U. S. 544. It was there claimed that an agent of the insurance company had made statements to the assured before the issuance of the policy in conflict with the recitals of the policy itself with respect to the method of payment of premiums, and this was asserted as a defense. Mr. • Justice Field, speaking for the court, said:

“The only case in which a representation as to the future can he held to operate as an estoppel is where it relates to an intended abandonment of an existing right, and is made to influence others, and by which they have ■been induced to act. An estoppel cannot arise from a promise as to future action with respect to a right to be acquired upon an agreement not yet made. The doctrine of estoppel is applied with respect to representations of a party, to prevent their operating as a fraud upon one who has been led to rely upon them. They would have that effect if a party who, by his statements as to matters of fact, or as to his intended abandonment of existing rights, had designedly induced another to change his conduct or alter his condition in reliance upon them, could be permitted to deny the truth of his statements, or enforce his rights against his declared intention of abandonment. But the doctrine has no place for application when the statement relates to rights depending upon contracts yet to be made, to which the person complaining is to be a party. He has it in his power in such cases to guard in advance against any consequences of a subsequent change of intention and conduct by the person with whom he is dealing. For compliance witli arrangements respecting future transactions, parties must provide by stipulations in their agreements when reduced to writing. The doctrine, carried to the extent for which the assured contends in this case, would subvert the salutary rule that the written contract must prevail over previous verbal arrangements, and open the door to all the evils which that rule was intended to prevent.”

In the ease of McCoy v. Northwestern Mutual Relief Association, 92 Wis. 577, Judge Marshall, speaking for the court, said:

“After a loss accrues, an insurance company may, by its conduct, waive a forfeiture; or by some act before such a loss it may induce the insured to do or not to do some act contrary to the stipulations of the policy, and thereby be estopped from setting up such violation as a forfeiture; but such conduct, though in conflict with the terms of the contract of insurance and with knowledge of the insured and relied upon by him, will not have the effect to broaden out such contract so as to cover additional objects of insurance or cause of loss. To illustrate the principle here laid down, a policy of insurance against loss by fire cannot have ingrafted upon or added to it, by way of estoppel or waiver, provisions for insurance against loss by any other cause; and no more can a policy of life insurance, expressly limited to payment of a sum of money in the event of death from causes other than suicide or self-destruction, be broadened out by the application of the law of waiver or estoppel so as to cover the cause excluded under the contract. While a forfeit-' ure of benefits contracted for may be waived, the doctrine of waiver or estoppel cannot be successfully invoked to create a liability for benefits not contracted for at all.”

The effect of the decision of tbe majority is to say that a soliciting agent of a mutual benefit society in this State may abrogate one of the by-laws of the society by a statement to a prospective member that the by-law bad not been, or would be, enforced. In other words, the effect is to hold that such an agent can do indirectly by a .false statement what he has no authority to do directly.

I have not been able to find any case where the doctrine of estoppel has been applied under facts similar to those in the present case. ' No authority to that effect is cited in the opinion of the majority. Mr. Newberry was not a general officer of the governing body of the society, but I think it is unimportant what position he occupied, for it seems to me that even the chief officer of the society did not have authority to abrogate the by-laws by a mere statement with respect to- the intenion of the society not to enforce them.

Smith, J., concurs.