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 of the supreme tent shall be a condition precedent to such suspension. The record keeper, when any 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 date and cause thereof; and, in case any assessment shall be received from a member who has 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." The laws set out in this paragraph also show that a regular application must be made for membership, showing, among other things, the occupation of the applicant. The laws also provide that the subordinate tent shall be the agent of the members in making application for membership, the collection and transmission of dues and assessments, the serving of notices and the like. The answer then proceeds to aver that the decessed, Thomas H. Powell, applied for membership on the 21st day of September, 1893, through the Indianapolis Tent No. 35, organized as a subordinate tent in the city of Indianapolis; that said application was in writing, signed by the appellant, upon a blank form furnished for the purpose; and that, in reliance upon the representations made in the application, the beneficial certificate was issued to the deceased. The answer then avers that the deceased engaged in the saloon business, and admits that assessments were received thereafter, but without knowledge on the part of the association that he was so engaged, and that the association had no such knowledge until after his death. It is then averred that the association is ready and willing to return to the appellee the assessments received, and the amount thereof is brought into court for her use and benefit. With this paragraph of answer was filed as an exhibit the written application of the insured for membership. By this application, it is disclosed that the applicant's occupation was that of a bookkeeper, and in it he also states that he was never engaged in the sale or manufacture of intoxicating liquors. The paragraph closes by averring that, by reason of the facts therein stated, all rights under the beneficial certificate were forfeited by the deceased, having engaged in the sale of intoxicating liquors. A copy of the certificate issued to the deceased was also filed with the answer as an exhibit. In the affirmative reply to the first paragraph of answer, facts are alleged whereby it is sought to show a waiver and estoppel on the part of appellant. It is averred that 10 months after the insured engaged in the saloon business, appellant, with full knowl

edge of the fact, continued to recognize him as a member, and continued to levy and collect assessments and dues of him up to the time of his death; that on the day of his death an officer of appellant called at the saloon of decedent, then knowing it to be such, and collected and receipted for assessments and dues which he claimed to be then due; that all of said assessments so collected have been retained by appellant; that, although appellant knew he was so engaged in the saloon business, it failed and refused to suspend him, and up to his death continued to recognize him as a member in good standing. In the third paragraph of reply it is averred that an officer of the subordinate tent to which the decedent belonged, on the day he died, called at his place of business, and collected dues and assessments, and forthwith remitted the same to the appellant, and informed appellant that the said insured was dead, and that at the time of his death he was engaged in the saloon business; that, with such knowledge, appellant accepted and retained the money paid upon such assessment, and never offered to pay or tender it back. The fourth paragraph of answer is like the third, with the additional averment that, after appellant had received notice of the death of assured, as stated in the third paragraph, it sent to appellee blank forms for proof of death, which it required her to make out and be sworn to, and which she returned when completed. Appellant's motion for a new trial rested upon these reasons: (1, 2, 3) That the verdict is not sustained by sufficient evidence, and is contra.y to the law and the evidence; (4) that the amount of recovery assessed by the jury is erroneous, being too large; (5, 6) that the court erred in giving and in refusing to give certain specified instructions; (7, 8) that the court erred in admitting and in overruling appellant's motion to strike out certain evidence.

The first question discussed under this branch of the case is instruction No. 3 given by the court on its own motion. In this instruction the court stated to the jury that appellant, by its answer, admitted that it had knowledge that the decedent was engaged in the saloon business, immediately after his death, and that, if the jury found that on the day of his death, appellant, by an officer of the subordinate tent to which decedent belonged, collected money from appellee for an assessment or dues upon the certificate, or by reason of his membership in appellant order, and that said money was remitted to and received by appellant after it had knowledge that the decedent had engaged in the saloon business; and that appellant did not tender back said money before this action was commenced, and still retained it until the commencement of the action,-then appellant would be estopped to question the validity of the certificate on the ground that decedent had violated the laws of the order in engaging in the sale of intoxicating liquors. While

*

worded differently, the same legal proposition is stated in the fourth instruction given by the court on its own motion as that in the third, and the two may be considered together. Complaint is made of these two instructions that they make no discriminations as to the rank and authority of the officer of appellant to whom such knowledge was communicated. The instructions proceed upon the theory that the knowledge was communicated to appellant itself. As appellant is a corporation, this, of course, implies that the knowledge was communicated to one or more of its officers. It is urged that notice to the recorder of the subordinate tent to which the decedent belonged, or to the supreme recorder, would not be notice to appellant, as they acted merely in clerical capacities. We are not called on to decide this question, for the instructions speak of notice and knowledge to appellant, and not to any officer or officers. In Association v. Beck, 77 Ind. 203, the word "void" was used in the certificate. The court held that it meant "voidable," and in deciding the case said: "The logical and necessary deduction from this doctrine is that a distinct act of affirmance of the contract by the party enitled to avoid it, made with knowledge of the tacts, and especially such acts as the demand and receipt of premiums or assessments, would constitute a waiver of the forfeiture or of the right to annul the contract, and so it is held in several cases already cited. There is no reason why this waiver may not occur after as well as before the death of the person whose life was insured." In Erdmann v. Insurance Co., 44 Wis. 376, the insured member was in arrears. On the 19th of the month he gave a friend money to pay his arrears dues. On the following day he was killed, and on the same day the friend paid the money to the local lodge, which, with knowledge of the fact of such death, etc., accepted the money, and transmitted it to the supreme lodge, with a report of a committee that the money was paid after the death of the insured. The supreme lodge received and retained the money until after suit was brought on the certificate. The court said: "So it seems that the defendant, with the full knowledge of all the facts as to the time and manner of the payment of this money, accepted and retained it long after the commencement of this suit. This certainly amounted to a waiver of the forfeiture, if one had occurred (Joliffe v. Insurance Co., 39 Wis. 111); for both the lodge, which was the agent of the defendant for that purpose, received and transmitted, and the defendant itself accepted and retained, the money after notice of the death of Erdmann, and with full knowledge of all the facts relating to the payment. * We have already said there was nothing in the charter of the defendant which rendered the doctrine of waiver inapplicable to it. We therefore hold that the legal effect of accepting and retaining the money paid on behalf of Erdmann with a full

knowledge of the facts operated as a waiver of the forfeiture." In the case of Warnebold V. Lodge, S3 Iowa, 23, 48 N. W. 1069, the court say: "It is claimed that, although the said Warnebold had paid all assessments for death losses up to the time of his death, yet that he had forfeited his membership in the Evening Star Lodge by failure to pay certain dues to the lodge. It is true that certain dues were past due at one time, but previous to his death these arrearages were paid to the satisfaction of the officer whose duty it was to collect dues. No action was taken by the lodge suspending Warnebold from membership because of this delinquency. So far as the records of the lodge disclosed, he was a member in good standing at the time of his death; but it claimed that by failing to pay his dues at the proper time, by the constitution of the order, he was suspended without any action being taken. This ignores all the rules of law. applying to waiver and estoppel. The doctrine that there is something so binding and sacred in a contract of insurance that waiver and estoppel have no application to them has long since been exploded. We need cite no authorities upon this point. It is too well understood to be now questioned. When the defendant and its subordinate local lodge received Warnebold's money, and adjudged that he was in good standing when he died, it is not a matter of much consequence what may be the laws or rules or regulations of the order. If any court were to hold that in an ordinary contract such acts did not constitute a waiver of all delinquencies, it would be an adjudication which would command the respect of no one; and there is no reason why a contract of insurance should be construed differently from any other contract." The case of Gray v. Association, 111 Ind. 531, 11 N. E. 477, is in point. There the defense rested upon a bylaw forbidding the issuing of a certificate to a person under 18 years of age. The assured was under that age, of which fact the company had knowledge. In deciding the case the court said: "A life insurance company organized under the laws of this state, which issues a policy to one under the age required by its by-laws merely, with knowledge of the insured's true age, or which, after obtaining such knowledge, still retains the consideration, and makes no offer to cancel the contract, is estopped to set up the matter of age as a defense to an action on the policy." In Iowa it was held that, where a benefit society issued a certificate of membership conditioned to be void if the beneficiary was not a "natural heir" of the member, and continued to collect assessments after knowledge of the fact that the beneficiary was not a natural heir, such acts on the part of the association constitute a waiver of such condition. Lindsey v. Society, 84 Iowa, 734, 50 N. W. 29. In the case of Supreme Tribe of Ben Hur v. Hall (decided by this court March 14, 1900) 56 N. E. 780, it was held that an insurance society which demands and accepts a payment of dues after the death

of a member, with knowledge of such death, is estopped from denying liability on the certificate of membership. We refer to that case and the authorities there cited without further comment. In this connection it is proper to say that appellant relies upon section 142 of its by-laws, which defines “prohibited occupations," and the consequences arising thereunder. One of these is to engage in the manufacture or sale of intoxicating liquors. It is then provided that, in case any beneficial member should engage in any of such "prohibited occupations," "his benefit certificate shall become null and void from and after the date of his so engaging," etc., "and he shall stand suspended from all rights to participate in the benefit funds," etc. It is further provided that "no action of the tent or of the supreme tent shall be a condition precedent to such suspension." It is further provided that the payment of any assessment by such prohibited member, and the receipt thereof, shall not continue the benefit certificate in force, nor shall it be a waiver of his engaging in such prohibited occupation. Appellant's learned counsel urge that this by-law is selfexecuting, and hence the mere fact that the insured engaged in a prohibited business forfeited his right to the beneficial membership; that no action on its part was necessary to declare a forfeiture, and hence it is absolved from liability. We cannot adopt this view. Insurance contracts should be construed liberally in favor of the insured, and the facts that the insured paid his dues and assessments to the local authorities after he engaged in the liquor traffic, with the knowledge of the fact that he was so engaged, and that appellant received and retained the last payment with a knowledge of the fact, and the further fact that he died when so engaged, estops it from now asserting that the beneficial certificate was forfeited. The instructions under consideration correctly stated the law.

By the ninth instruction the court told the jury that if they found that, after the death of decedent, appellant obtained knowledge that he had engaged in the liquor traffic, and with such knowledge had sent duplicate blank forms for proof of death, together with blank claimant's affidavits, and required them to be filled out and sworn to by appellee, and which was done, then appellant would be estopped to claim a forfeiture of the certificate on the ground that he engaged in such prohibited occupation. Before taking up this instruction for discussion, it may not be out of place though somewhat foreign-to say that the record shows that, after appellee had complied with appellant's requirements in making proofs of death, the company was dissatisfied upon one point, viz. that there was a discrepancy on the question of the insured's age as given by him in his application and as shown by the proofs. The proofs of death are dated August 30, 1895. On September 23d following, appellee received a postal card from the record keeper of the

local tent, calling her attention to such discrepancy; that he did so upon information from the supreme tent, and asked for additional information. This was done, and about two months thereafter appellant informed appellee it would not pay her the claim evidenced by the certificate, because her husband had engaged in the saloon business. Recurring, after this diversion, to instruction No. 9, we are clearly of the opinion that, as applied to the facts, it correctly stated the law. The identical question has been decided in this state in the case of Replogle v. Insur-、 ance Co., 132 Ind. 360, 31 N. E. 947, in which the court say: "An insurance company may, unquestionably, waive the right to avoid a policy for breach of some of its conditions. Any act done after notice of the breach of conditions, which recognizes the validity of the policy, is a waiver of the right to avoid it for that reason. Titus v. Insurance Co., 81 N. Y. 410; Cannon v. Insurance Co., 53 Wis. 585, 11 N. W. 11; Gans v. Insurance Co., 43 Wis. 108; Schreiber v. Insurance Co., 43 Minn. 367, 45 N. W. 708; Insurance Co. v. Lansing, 15 Neb. 494, 20 N. W. 22; Webster v. Insurance Co., 36 Wis. 67; Insurance Co. v. Norton, 96 U. S. 234, 24 L. Ed. 689; Prentice v. Insurance Co., 77 N. Y. 483; Brink v. Insurance Co., 80 N. Y. 108; Osterloh v. Insurance Co., 60 Wis. 126, 18 N. W. 749; Viele v. Insurance Co., 26 Iowa, 9. In the case of Titus v. Insurance Co., supra, the court said: 'When there has been a breach of a condition contained in an insurance policy, the insurance company may or may not take advantage of such breach, and claim a forfeiture. It may, consulting its own interest, choose to waive the forfeiture, and this it may do by express language to that effect, or by acts from which an intention to waive may be inferred, or from which a waiver follows as a legal result. A waiver cannot be inferred from its mere silence. It is not obliged to do or say anything to make the forfeiture effective. It may wait until claim is made under the policy, and then, in denial thereof, or in defense of a suit commenced therefor, allege the forfeiture; but it may be asserted broadly that if, in any negotiations or transactions with the insured after knowledge of the forfeiture, it recognizes the continued validity of the policy, or does acts based thereon, or requires the insured, by virtue thereof, to do some act or incur some trouble or expense, the forfeiture is, as a matter of law, waived; and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or an estoppel.' In Cannon v. Insurance Co., supra, the supreme court of Wisconsin says: "The proposition upon which counsel rely is this: that a party cannot occupy inconsistent grounds or positions; that one who relies upon the forfeiture of a contract cannot at the same time treat the contract as an existing and valid one, nor call upon the other party to the contract to do

anything required by it; or, to apply the proposition to the precise facts in the case, that, as the defendant in its correspondence with the attorneys for the plaintiff, after full knowledge of the forfeiture, saw fit to call for additional proofs of loss, recognizing by this act the continued validity of the policy, it could not, after the plaintiff had gone to the expense and trouble of furnishing these proofs, change its ground, and claim that the policy was no longer in force. We think this proposition is sound in law, and amply sustained by the doctrine of the adjudged cases.' To the same effect, and equally emphatic, is the case of Gans v. Insurance Co., supra. The proposition above quoted from Titus v. Insurance Co., supra, was approved by the court in Insurance Co. v. Tomlinson, 125 Ind. 34, 93, 25 N. E. 126, 9 L. R. A. 317.”

There is an apparent conflict between one of the provisions of the by-laws (142) and a provision of the certificate sued on. In the latter it is provided that "the board of trustees may suspend members from all benefits of the order who, after admission, engage in occupations prohibited by the bylaws of the order, and the action of the board in such cases shall be final," while the bylaw says that the member "shall stand suspended," etc., if he engage in a prohibited occupation. This being the case, the court, in determining the rights of the parties, will adopt the provision that will give the greater right to the insured and his beneficiary. In the case of Insurance Co. v. Hazelett, 105 Ind. 212, 4 N. E. 582, the court say: "It thus appears that two stipulations were incorporated in the policy, covering the same subject-matter,--the one providing that upon certain conditions the policy should become absolutely void; the other, that upon precisely the same conditions the insurance company might avoid the policy, and absolve itself from liability to a certain extent. Since both of these decisions cannot stand together, the inquiry is, which shall prevail? * A forfeiture will not be enforced unless it is clearly demanded by established rules governing the construction of written agreements. When a policy of insurance contains inconsistent or contradictory provisions, it is the rule that the provision most favorable to the assured will be adopted. Moulor v. Insurance Co., 111 U. S. 335, 4 Sup. Ct. 466, 28 L. Ed. 447; National Bank v. Insurance Co., 95 U. S. 673, 24 L. Ed. 563." Again, in the same case, at page 216, the court say: "Courts will construe a contract of insurance liberally, so as to give it effect, rather than to make it void. Conditions which create forfeitures will be construed strongly against the insurer. Only a stern legal necessity will induce such a construction as will nullify the policy. Carson v. Insurance Co., 43 N. J. Law, 300, 39 Am. Rep. 584; Insurance Co. v. Wallace, 93 Ind. 7; Bliss, Ins. § 385." See, also, Insurance Co. v. Lorenz, 7 Ind. App. 266, 33 N. E. 444, 34 N. E. 495; Grant v. Insurance

Co., 5 Ind. 23; Insurance Co. v. Jenks, Id. 96; Insurance Co. v. Wiler, 100 Ind. 92. Nibl. Mut. Ben. Soc. (2d Ed.) p. 294, § 147, says: "It is undoubtedly the general rule that a member of a society may take notice of and is bound by its articles of association and bylaws, although they are not recited or referred to in his certificate of membership; but where the terms of a by-law and the terms of a certificate, while consistent with the charter, are inconsistent with each other. it must be held that the society has waived the provisions of the by-law in favor of the assured, and wherein they are inconsistent with the provisions of the certificate the latter will control the rights and liabilities of the parties." Olmstead v. Insurance Co., 50 Mich. 200, 15 N. W. 82, is in point. A bylaw of the company provided the time and manner of paying assessments, and, if not paid within 30 days thereafter,, the insurance "may be suspended or canceled by the secretary or board of directors," etc. It was held that, the board not having taken any action towards the suspension of the insured or the cancellation of his policy for nonpayment of assessment, he was entitled to recover for his loss. By instruction No. 10 the court told the jury that a waiver of a forfeiture may occur simply because other persons, members of the order, had engaged in like occupation with the decedent, with knowledge of appellant and decedent, and that appellant had not taken any action to suspend or expel them. We cannot approve this instruction as a correct statement of the law, but under the undisputed facts in the case we are clearly of the opinion that, as appellee was entitled to recover, the jury were not misled by it. In such case an erroneous instruction will be regarded harmless. Van Vleck v. Thomas, 9 Ind. App. 83, 35 N. E. 913; Railroad Co. v. Butler, 10 Ind. App. 244, 38 N. E. 1.

Other instructions given by the court of it's own motion are complained of by appellant, but we are unable to see anything objectionable in them, and do not deem it necessary to take them up seriatim, and discuss them. Appellant tendered a series of instructions, and of these the court refused to give the first, fourth, fifth, sixth, seventh, and ninth, to which refusal it excepted. We will notice only those specifically discussed by appellant. By the seventh instruction so requested the court was asked to say to the jury that the subordinate or local tent, in the collection and transmission of assessments and dues from its members, is the agent of the members, and that such members agree, by becoming members, that the supreme tent shall not be liable for any negligence, etc., on the part of the local tent. This instruction was based upon a by-law of appellant embodying the substance of the instruction. It is insisted that the assured and appellee are bound by the by-law, and that the local tent is the agent of the member, and not of appellant.

We cannot adopt this view. The only mode provided for the payment of dues and assessments by members of appellant order was to pay them to the local tent, or some designated officer thereof; and it is made the duty of the latter to transmit the same to the supreme tent. To this extent, at least, such subordinate tent or officer is the agent of the supreme tent. In the case of Lodge v. Withers, 32 C. C. A. 182, 89 Fed. 180, it was held that the officers of a subordinate lodge were the agents of the supreme lodge for the purpose of collecting and forwarding the dues paid by members, although the by-laws of the order provided that they should be the agents of the members in such matters. In the recent case of Supreme Tribe of Ben Hur v. Hall, supra, this court decided the same question in harmony with this rule. See, also, Supreme Council v. Boyle, 10 Ind. App. 301, 37 N. E. 1105; Knights of Pythias v. Kalinski, 163 U. S. 289, 16 Sup. Ct. 1047, 41 L. Ed. 163. By analogous reasoning it necessarily follows that, the subordinate tent or officers being agents of the supreme tent in such matters, the knowledge of such agent is the knowledge of the principal, and the supreme tent is bound thereby. Appellant's counsel complain that the court, in its instructions, has more than once spoken of knowledge of certain facts on the part of appellant, when the record shows that the local tent and its officers only possessed such knowledge. The court was justified in using this language in reference to the business decedent was engaged in, the payment of dues and assessments by him or by some one for him, and knowledge of the lccal officers of such facts. It follows from what we have said and the authorities that the court correctly refused to give the sev enth instruction. By the eighth instruction tendered the court was requested to say to the jury that the by-law declaring that a member shall stand suspended for engaging in any prohibited business was self-executing, and that no action of the supreme te as necessary to work such suspension. This instruction was correctly refused, for. as we have seen, the by-laws must be construed in the light of and in connection with the certificate, which provides that in certain events a member "may be suspended," etc. The ninth instruction embraces the same principles of law, and was properly refused.

We have now considered all the instructions discussed by counsel. The eighth reason for a new trial relates to the action of the court in overruling appellant's motion to strike out the testimony of John Graham. This witness was deputy supreme commander, and his duties were defined by the bylaws. It is unnecessary to set out the evidence of this witness, even in the abstract. We have examined it with care, and are unable to see that the evidence in any manner prejudiced the appellant; and, while some parts of it may not have been legitimate, and strictly within the issues, there was no re57 N.E.-14

versible error in overruling the motion to strike it out. The verdict is sustained by the evidence, and is neither contrary to the law nor the evidence. A correct and just conclusion seems to have been reached upon the merits of the case, and there is no prejudicial error for which the judgment should be reversed. Judgment affirmed.

(176 Mass. 135)

ARNOLD v. EASTMAN FREIGHT-CAR HEATER CO.

(Supreme Judicial Court of Massachusetts. Suffolk. May 17, 1900.)

INJURY TO SERVANT-ASSUMPTION OF RISKEVIDENCE.

1. Where a servant was injured by the fall of a staging erected by him, it was not error, in an action against the master to recover for such injuries, to refuse to permit an expert to testify that he could have determined the dangerous condition of the staging from an examination thereof.

2. A master is not liable for an injury to a servant caused by his fall from a staging by reason of its being defectively attached to a building, when the servant had built and attached the staging, and had not asked or received any instructions from the master.

Exceptions from superior court, Suffolk county; Francis A. Gaskill, Judge.

Action by Henry A. Arnold against the Eastman Freight-Car Heater Company for injuries received while in its employ. From a judgment in favor of defendant, plaintiff brings exception. Overruled.

Elder, Wait & Whitman, for plaintiff. John Lowell and James A. Lowell, for defendant.

BARKER, J. 1. An expert, having testified that in his opinion the coping board, two inches wide, and fastened to the building by four small nails, only, was an unsafe supIport for the staging carrying three men, was then asked whether, if he had been requested, as an expert, to examine the board and its attachment to the building, he could have discovered its condition. The question was excluded, and the plaintiff excepted. Assuming, as the plaintiff assumes in his brief, that the answer would have been in the affirmative, the difficulty with the question is that the ability of the witness, and his own opinion of it, were immaterial to the questions upon trial.

2. The verdict for defendant was ordered rightly. He could properly leave to workmen the matter of the staging which they were to use. See Adasken v. Gilbert, 165 Mass. 443, 43 N. E. 199; McKay v. Hand, 168 Mass. 270, 47 N. E. 104; Brady v. Norcross, 172 Mass. 331, 52 N. E. 528. The plaintiff was a mature workman. Having accepted the responsibility of arranging and moving the staging, he cannot be heard to say that it was negligence in the defendant to clothe him with the responsibility. He was given no direc tions, and asked for none, but did the work to suit himself. He chose to have the strain