
    Frederica Preuster, App’lt, v. The Supreme Council of the Order of Chosen Friends, Resp’t.
    
    
      (Court cf Appeals,
    
    
      Filed October 11, 1892.)
    
    Benefit societies—Forfeiture—Waiver.
    The application of R. for membership in the defendant organization contained an untrue statement as to his age, which under the terms of his certificate forfeited his rights to all benefits and privileges. Two years after his admission R. made application for an allowance on account of disability, but having heard rumors as to his age the council obtained a certificate of birth from Saxony, showing the fraud, and about six weeks after, on the report of the committee, the council voted to expel him. During said six weeks one or more assessments were collected, the secretary of tile council who received such assessments being a member of the investigating committee. Held, that this did not constitute a waiver of the forfeiture of membership on the part of the council, as it was bound to treat the accused member as innocent until satisfied of his guilt.
    Appeal from judgment of the supreme court, general term, fifth department, reversing order of special term granting plaintiff’s motion for a new trial, on case and exceptions, after a verdict for the defendant directed by the court at the circuit, and ordering judgment for defendant on the verdict.
    
      Frank Brundage, for app’lt; Cuthbert W. Pound and H. H. Morse, for resp’t.
    
      
       Affirming 38 St. Rep., 605.
    
   Finch, J.

That the right of Reim, under whose certificate the plaintiff claims, to membership in the order defending was liable to forfeiture for his false statement of his age is well established by the proofs. Without reference to the baptismal certificate, held to be incompetent as evidence, there was enough to show that while representing himself at the time of his application to be sixty years of age he was in fact at least sixty-one. Upon a question of life insurance the age of the applicant is always more or less material, because it is necessarily a prominent factor in the risk assumed. While it appears to be true that nothing in the. constitution of the order forbids an insurance upon a life beyond the age of sixty, yet the real age is material, ana the evidence indicates that the custom and habit of the order was not to accept a membership after the age of sixty had been reached. The table of rates appearing in the papers stops at about that age, and it is manifest that if the applicant had told the truth the risk might have been declined. His certificate of membership upon its face shows that it was granted upon the conditions specified'in his application, and the rules and regulations of the order; and one of the conditions contained in the form of application was that any untrue or fraudulent statement made therein, or a suspension or expulsion from the order, should forfeit the right to all privileges or benefits thereof.

It is alleged in the complaint, not only that the representation of Reim as to his age was untrue, but also that it was fraudulent, and the evidence tends to support that inference. Whether the "statement was knowingly or ignorantly false, the result of a forfeiture followed in accordance with the terms of the contract, and -operated as a'complete answer to the plaintiff’s claim unless the forfeiture was effectually waived, and it is upon such a waiver that the whole contention of the plaintiff rests.

In considering that question, it is necessary to recall the facts and the dates of their occurrence ; and we may admit them to be, substantially, such as the appellant claims them tobe from the • evidence in the record. The first information of a false statement of his age in the application of the member reached the secretary of the local council about a year after the issue of the certificate, but in the "form of a rumor, and obviously without any proof of its accuracy or truth, and coming from no reliable or authoritative source. It seems to have raised no serious doubt in the mind of the officer, and the membership of Eeim remained nnassailed until about two years later, when he made application for an allowance on account of disability. That application to the local council turned its attention to the rumors which had existed, and a committee was appointed to investigate them and ascertain the truth. That truth was not easily reached outside of those who were interested to conceal it; and one of the modes of inquiry adopted by the committee was an application to the foreign authority in Saxony having a registry of the birth of Eeim. That certificate, showing the falsehood of his statement, was received by the committee at least as early'as June twenty-third. It made a report in favor of expulsion on July thirteenth, and on the 28th of July the council heard the report read, and voted to expel. Ho assessments were collected after that date, but one or more were collected between the receipt by the committee of the foreign certificate and the committee’s report to the local council.

The secretary of that council, who received such assessments, was a member of the investigating committee, and his alleged knowledge of the fraud is sought to be imputed to the council and to the defendant. The secretary was an officer of the local council, appointed by it, and subordinate to its authority. The Supreme Council had no direct control over him, and could reach him only through his immediate superiors. Assuming that the local council may be deemed within its sphere the general agent of the defendant association, and that by receiving or expelling members it could in some measure bind or release the order, and so might have waived the forfeiture incurred, the court below has held that the evidence did not establish such waiver, and I concur in that opinion: Certainly there was no intention to waive the forfeiture on the part of the local council, or manifested by its action. It was bound to treat the accused member as innocent until satisfied of his guilt; and having full knowledge of the facts, and was not required to act by choosing between a waiver and a forfeiture until the truth was reached in a form and so supported by evidence as to make it a duty to act decisively in one direction or the other. The accused member, pending the investigation, must be deemed to have voluntarily taken the risk of its result. He must have known that it was in progress, and that his assessments were paid and received upon an assumption of his innocence which would fail if, in the end, the truth should he disclosed. After the knowledge obtained from the foreign registry reached the local council through the report of its investigating committee no assessments were collected or accepted. The council seems to have conducted the investigation with reasonable diligence. If it had purposely or negligently delayed the inquiry with a view to get as many assessments as possible before the forfeiture, and with full knowledge of the truth, a different question would be presented. But here it acted in good faith and promptly insisted upon the forfeiture when satisfied of the fact that it had been deceived.

Two circumstances are to be specially remembered in arriving at a conclusion. Ho authoritative notice of his true age was ever given by Eeim, or those who represented, him, and which, for that reason, bound him, and so put the company to its election. There was simply an accusation by third persons, never admitted by the ■deceased, and the truth or falsity of which was open to inquiry. In addition, it is to be observed that the foreign' certificate, objected to by the appellant, was held inadmissible by the general term, and did not justify the action of the local council. It proved nothing on the trial, and so proved nothing to the local council, which acted without any knowledge, except inadmissible hearsay, and so acted at its peril. The fact established on the trial contradicted the certificate, and of the real fact the local council never had any full knowledge until after premiums were refused. Pending the inquiry, there was knowledge of an accusation never admitted by the assured, and the truth. of which was in doubt. Until the council heard the evidence and acted upon it as satisfactory, it cannot be said that it had full knowledge of the actual fact, which all the time, and even down to the trial, was in dispute. If notice of the truth had been given by Eeim, or those representing him, so as to have bound them and required the belief of the insurer, a different conclusion might be required. But knowledge of an accusation is by no means a necessary knowledge of the fact, and the real truth as to the age of the assured was never lawfully proven till the date of the trial, and then by evidence which never came before the local council at all. Their action at the date of the expulsion may estop them from denying a then existing knowledge; but before that date, neither by estoppel, nor as matter of fact, can it be said that full knowledge ■existed.

We think the conclusion of the general term was correct, and the judgment should be affirmed, with costs.

All concur.  