Perrigo v. Conn. Commercial Travelers Mut. Acc. Asso.

The trial court was undoubtedly justified by the broad language of the decision in Coughlin v.Knights of Columbus, 79 Conn. 218, 64 A. 223, in directing a verdict for the defendant. In that association, as in this, a custom of accepting belated payments of assessments in disregard of the by-laws prevailed; such payments being made to and accepted by the secretaries of local councils and by them turned over to the national secretary who, with other officers of the order, knew of and acquiesced in the practice; and the relevant by-laws of the Knights of Columbus were practically the same as those of the defendant in this action.

The plaintiff challenges the soundness of the decision in the Coughlin case on principle and on authority, and asks us to re-examine the doctrine there announced in so far as it holds that a member of a mutual assessment insurance association, being charged with knowledge of the limitations imposed by the by-laws upon the authority of its agents and officers, is in no position to claim that he was misled by and relied on a long-continued custom of disregarding forfeitures, although such custom was known to and acquiesced in by the general officers of the association. Of course, a member of such an association cannot claim that the association has conferred upon an agent ostensible authority to do that which the member knows he is forbidden to do, simply because the agent has done the thing forbidden. This proposition is elementary in its application to a single act done in violation of a limitation of authority known to the person dealing with the agent, though he be a general officer of the association. Lyon v. Royal Society of Good Fellows, 153 Mass. 83,26 N.E. 236. The association itself acting directly by vote cannot arbitrarily reinstate a deceased member in violation of its own constitution. Societa UnioneFratellanza Italiana v. Leyden, 225 Mass. 540,114 N.E. 738.

The debatable ground seems to begin at the point where disregard of the by-laws ceases to be a discrimination in favor of individuals, and attains the proportions of a recognized custom of indiscriminately treating the belated payment and acceptance of assessments as automatically restoring delinquents to membership; thus interpreting the forfeiture declared by the bylaws as a device for securing prompt payment, which has accomplished its intended purpose when payment is made within a reasonable time after it is overdue. In almost all of the decided cases, the organization of the mutual benefit association has included a central corporate body — the defendant in the action — and a number of subordinate branches each possessing a more or less independent legal personality; and a "decided conflict" of opinion has arisen upon the question whether or not a custom of disregarding forfeitures on the part of a subordinate branch will bind the central corporation. Bixler v. Modern Woodmenof America, 112 Va. 678, 72 S.E. 704, 38 L.R.A. (N.S.) 571, and cases collected in the note.

We are not in this case directly concerned with the merits of this conflict, for the reason that the defendant in this action has no subordinate branches but deals directly with its members in all of its activities. Nevertheless, the cases are instructive. Some of them hold that a custom of disregarding forfeitures established by a local branch will bind the parent corporation without any evidence of actual knowledge and acquiescence by its general officers. Painter v. Industrial Life Asso.,131 Ind. 68, 30 N.E. 876; Trotter v. Grand Lodge,L. O. H., 132 Iowa 513, 109 N.W. 1099; SovereignCamp, W. O. W. v. Smith, 22 Ariz. 1, 193 S.W. 758;Head Camp, W. O. W. v. Bohanna, 59 Colo. 545,151 P. 428 (a typical case in which the gap is bridged by holding that as matter of law, the knowledge of a local officer is knowledge of the central corporation);Jones v. Knights of Honor, 236 Ill. 113,86 N.E. 191; High Court, Order of Foresters v. Schweitzer,171 Ill. 325, 49 N.E. 506; Petersen v. Sovereign Camp,W. O. W., 97 N.J.L. 497, 117 A. 601. Not all of these are cases of default in prompt payment of assessments. Some relate to employment in forbidden occupations, and the Arizona case notes a distinction on this ground at page 11. See also note to ModernWoodmen of America v. Breckenridge, 10 L.R.A. (N.S.) 136 (75 Kan. 373, 89 P. 661). The other cases hold that a custom of disregarding forfeitures by a local branch does not bind the central organization, in the absence of evidence of actual knowledge and acquiescence on the part of the managing officers of the defendant corporation. Kocher v. Supreme Council,Cath. Ben. Legion, 65 N.J.L. 649, 654, 48 A. 544;Modern Woodmen of America v. Tevis, 117 F. 369;Bixler v. Modern Woodmen of America, 112 Va. 678,72 S.E. 704; Knights of Columbus v. Burroughs,107 Va. 671, 60 S.E. 40; Kennedy v. Grand Fraternity,36 Mont. 325, 92 P. 971.

All these cases, though not squarely in point, suggest more or less strongly that the central corporation would have been held bound by the custom in case its managing officers had known of and approved it. Thus inKocher v. Supreme Council, Cath. Ben. Legion, supra, at page 654, it is said: "There is a class of cases which may, perhaps, form an exception to the application of the general principles above laid down. And that is where a course of dealing by officers and agents of a corporation, at variance with the strict limitation of duty, has been established by proof of the usage, which has been permitted to grow up in the transaction of its business, and of the acquiescence of its managing officers charged with the duty to provide and control the company's business." And in Modern Woodmenof America v. Tevis, supra, it is said, at page 375: "The acts of the clerk of the local camp in extending the times of payment of the assessments upon its members and in reinstating delinquent members without warranties of good health, were unauthorized by the society, and, in the absence of knowledge and acquiescence in them by some of the chief officers of the head camp, were ineffective to establish any estoppel against the society, or any waiver by it of any of the provisions of the agreement." The Tevis case was cited and the foregoing excerpt quoted with approval in Bixler v. Modern Woodmenof America, supra, reaffirming Knights of Columbus v. Burroughs, supra. In Kennedy v. Grand Fraternity,supra, at page 344, it is said: "`Where the waiver relied on is the act of an agent, it must be shown either that the agent had express authority from the company to make the waiver, or that the company subsequently, with knowledge of the facts, ratified the act of the agent.'" We have found no decision except theCoughlin case, holding that a custom of disregarding forfeitures known to and acquiesced in by the managing officers of the insuring corporation is not binding upon it, when acted on and relied on by a member.

On the other hand, all the cases we have found in which it has been shown that a technically delinquent member has acted in reliance upon an established custom adopted and approved by the insuring corporation itself, — acting by its managing officers, — of disregarding forfeitures imposed by its by-laws, are unanimous in holding that the corporation is bound by its own established custom of conducting its own business. "The custom of the subordinate lodge . . . could not, of itself, and without the knowledge and approbation, express or implied, of the grand lodge, operate as a waiver of the provisions for the forfeiture of the insurance and the suspension of the member appearing in General Law 197. But we think if this custom was brought to the notice . . . of the grand lodge, and instead of being reprobated, received either express approval or that approval which should be implied from silence, the general law must be regarded as modified by the existing custom." Burke v. GrandLodge, A. O. U. W., 136 Mo. App. 450, 457,118 S.W. 493. "A member dealing with a subordinate officer of the society, knowing his duties to be prescribed by law, has no right to rely on the act of that officer, if he should attempt to waive a requirement which under the law he has no right to waive. But when he has dealings of that kind with such officer and those dealings are of such a nature that they must pass under the observation of those who have in charge the ultimate management of the company's affairs to such an extent as to justly induce the member to believe that the practice is approved by the company itself, the company is estopped to take advantage of the situation."McMahon v. Knights of the Maccabees, 151 Mo. 522,537, 52 S.W. 384. In Edmiston v. Homesteaders,93 Kan. 485, 144 P. 826, and Homann v. AllgemeinerArbeiter Bund, 184 Mich. 417, 151 N.W. 559, the courts, having found that there was some evidence that a prevailing custom of accepting belated assessments was known to and acquiesced in by the general officers of the corporation, held in each case that the question of liability was properly submitted to the jury.

In Crowley v. A. O. H. Widows and Orphans Fund,222 Mass. 228, 110 N.E. 276, the defendant's by-laws were practically identical with those of this defendant, a like custom of accepting belated assessments was shown, an overdue payment was mailed to defendant and received before the death of the insured on the same day, and the defendant transacted its insurance business directly with its members. In upholding a verdict for the plaintiff the court said, on page 232: "It is a general rule that the officers of a mutual beneficiary insurance association have no authority to waive its by-laws so far as they relate to the substance of the contract. McCoy v. Roman Catholic MutualIns. Co., 152 Mass. 272 [25 N.E. 286]; Lyon v. RoyalSociety of Good Fellows, 153 Mass. 83 [26 N.E. 236]. In this case no question arises as to a waiver of the by-laws by any agent or officer of the company. It appears from the report that the notices of the assessments were sent by the defendant corporation and that the payments of all the assessments were made to and received by the defendant. Rice v. New EnglandMutual Aid Soc., 146 Mass. 248 [15 N.E. 624]. A waiver of important provisions of a written contract is not to be inferred from slight evidence. It appears from the terms of the report that during the period of eleven years preceding the death of the certificate holder he had paid and the defendant had received assessments in at least fifty-eight instances after the time limit fixed by the by-laws for making such payments had expired, and that no action was taken at any time by the defendant to enforce a forfeiture against Crowley of his rights under his certificate by reason of his delay in making payments beyond the time limit, nor was any demand ever made upon him for the payment of an additional sum of fifty cents for reinstatement, nor was he ever required to furnish a medical certificate of health as provided by the bylaws. In view of these undisputed facts we think it plain that it was a question for the determination of the jury whether the defendant had waived the requirement of the by-laws that the payment of the December assessment should be made within thirty days after the same became due."

In view of this array of authority, little remains to be said. An insurance policy, no matter what by-laws are incorporated in it by reference, is but the written expression of a contract, which the parties themselves (not being under legal disability or prohibition) may modify by mutual consent. This is the legal basis of most so-called "waivers" of conditions in insurance policies. As to the legal capacity of the defendant to consent to the modification evidenced by the custom testified to, it is probably true that a mutual benefit association cannot make a discriminatory contract of insurance in violation of the principle of mutual equality guaranteed to its members by its constitution or by-laws. Societa Unione Fratellanza Italiana v. Leyden,225 Mass. 540, 114 N.E. 738; Lyon v. Royal Society ofGood Fellows, 153 Mass. 83, 26 N.E. 236. But the custom of condoning reasonably short delays in paying assessments, being applicable to all members, is not open to that objection. Such a custom is advantageous as well to the corporation as to the members, and is not opposed to any declared public policy. That being so, the corporation, having consciously received and retained assessments to which, except for the modification of the contract, it would not have been entitled, cannot be permitted to deny that the contract was in fact so modified. Union Hardware Co. v. Plume Atwood Mfg. Co., 58 Conn. 219, 221, 20 A. 455;In re Litchfield County Agricultural Soc., 91 Conn. 536,100 A. 356.

On the testimony before us, the jury might reasonably have found that the custom testified to was known to and approved by the defendant corporation; that its assistant secretary, employed at headquarters, was permitted, if not instructed, to receive belated payments from members as a matter of course; that such custom had prevailed for three years or more, and that it was known to and relied on by the deceased. Whether the payment in question was received by the defendant before Mr. Perrigo's death was a question for the jury.Crowley v. A. O. H. Widows and Orphans Fund, 222 Mass. 228, 110 N.E. 276. The claim that the deceased was not restored to membership until the word "reinstated" was stamped upon his index card, is not tenable. If the jury at the new trial should find that the custom testified to was known to and acquiesced in by the defendant, his membership was never forfeited. To the extent that the decision in Coughlin v.Knights of Columbus, 79 Conn. 218, 64 A. 223, conflicts with our present conclusion, it is overruled.

There is error and a new trial is ordered.

In this opinion the other judges concurred.