
    Melvin D. Tucker and William W. Tucker, Plaintiffs, v. The Supreme Tent of the Knights of the Maccabees of the World, Defendant.
    Fourth Department,
    January 15, 1908.
    Insurance — forfeiture of membership by selling liquor — evidence — waiver of prohibition.
    Although the by-laws of a benevolent insurance society provide that no persons shall be eligible for membership if engaged in the manufacture or sale of liquors as a beverage, and that on a member engaging in that business his certificate shall become void and he shall be suspended without action of the insurer as a condition precedent to suspension, and that the record keeper shall not receive further assessment from such suspended member but shall enter the suspension on his record and report to the supreme record keeper, and that receiving an assessment from a member engaged in such occupa-' tion and the. receipt therefor shall not constitute a waiver of the prohibition, evidence is nevertheless admissible in an action by the beneficiary against the insurer to show that the record keeper of a local lodge, with knowledge that ■ the insured engaged in the prohibited' occupation, collected the assessment continuously for two years before his death, assuring him that the manner in which the insured engaged in that occupation would not affect the validity of the- contract. This, because the by-laws required the agent to refuse to receive further assessments from a member suspended ipso facto by engaging in such occupation and to report the- suspension to the insurer, and, hence, had the evidence been admitted the jury might have found that the facts had been reported by the agent and thereafter waived by the insurer with full knowledge.
    Williams, J., dissented.
    Motion .by the plaintiffs, Melvin D. Tucker and another, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in. the first instance after a trial at the Erie Trial Term in October, 1906:
    The result at Trial Term was a direction of verdict for plaintiffs fbr $171 and interest, the amount of defendant’s offer of judgment, to which plaintiffs duly excepted.
    
      Arthur W. Hickman, for the plaintiffs.
    
      George P. Keating, for the defendant.
   Robson, J.:

Defendant issued on December 29, 1894, a certificate of insurance providing in effect that it would pay plaintiffs as beneficiaries therein named on the death of Harvey J. Tucker, who may be designated as the insured, the sum of $3,000, provided, among other, things, the latter should have in every particular complied with the laws of the order then in force or thereafter adopted.

Defendant’s by-laws are made a part of the contract of insur anee. Section 142 of these laws provided that, no person shall be admitted as a beneficial member of the order who is engaged.in any one of a number of designated occupations, and “no person shall be eligible for membership in the Order who is engaged', either as principal, agent or servant in the manufacture or sale of spiritous, malt, or vinous liquors as a beverage; and should any beneficial member of the Order engage in any of the above prohibited occupations after his admission, his benefit certificate shall become null and void from and after the date of his so engaging in' such prohibited occupation, and he shall stand suspended from all rights to participate in the benefit funds of the Order, and no. action of the Tent or Supreme Tent shall be a. condition precedent to such suspension, and the Record Keeper, when such suspension takes place, shall not, receive further assessments from such suspended member. He shall enter such suspension on his records and report the same to the Supreme Record Keeper, as he would report any other suspension, giving the date and cause thereof, and in case any assessment shall be received from the member who is thus engaged in a prohibited occupation after his admission, the receipt thereof shall not continue the benefit certificate of such member in force, nor shall it be a waiver of his engaging in-such prohibited occupation.” ■

■It is claimed that the insured some two years before his death engaged in the occupation prohibited by this provision. That he technically did take up that business after obtaining the insurance is true ; but the manner in which he carried it on, and was personally connected with it, was such that he might reasonably have concluded that the risk assumed by defendant under its contract was not thereby increased.

On the trial the court excluded the evidence offered for plaintiff, showing that the record keeper of the local tent had knowledge of the fact that the insured had engaged in this prohibited occupation and that this officer, after he was fully advised of the fact, for a period of more than two years continuously till the death of insured collected the assessments on the contract, and that the insured continued to pay these assessments during that -time after -he had been repeatedly assured by the.record keeper that the fact of his engaging in the manner and to the extent he had in that occupation would not affect the validity of the contract of .insurance. •

We think this evidence was competent. It is true that engaging in a prohibited occupation of itself, without action thereon, either by the local or supreme tent, made null and void the benefit certifi- . cate theretofore issued to any person who should thereafter engage therein. But the record keeper, of the local tent was the person authorized to collect of tlie members of such local tent holding benefit certificates all assessments made thereon and transmit the same to the defendant. Though an attempt is made to declare such officer as well as the local tent the agent of the insured in collecting and transmitting assessments, and beyond this-to provide that “ the" Supreme Tent will, in no case, be liable for any default or negligence on the part of a Subordinate Tent, or its officers, in such transmission or the serving of notice of assessments or suspen-. -sions, required under the laws of the Order,” yet it is also made his duty,, necessarily in his capacity as agent of the defendant. alone, to refuse to receive further assessments from a member holding a certificate who had been suspended, ipso facto, by reason of engaging in a prohibited occupation, and to report such suspension to defendant, giving the cause thereof. If the jury had- been permitted to hear and consider the excluded evidence, they might have found that the insured had the right to, and - did, assume that the record keeper had,.as his duty required, reported to defendant the facts as to the change of occupation of insured and that forfeiture of the contract had thereafter been waived by defendant, and with full knowledge of the facts had accepted payment of his assessments and had consented to the continuance in full force of the benefit certificaté.

All concurred, except Williams, J., who dissented, and Spring, J., not sitting.

Plaintiffs’ exception sustained and motion for new trial granted, with costs, to plaintiffs to abide event.  