#### National Masonic Accident Association v. George R. Titman.

1. Accident Associations—Representations as to By-laws—Estoppel.—An accident association, through its agent, represented to an applicant for insurance, at the time his certificate of membership was issued, that certain printed by-iaws exhibited and read to such applicant were the by-laws of the association then in force. Held, that such conduct estopped the association from denying the existence and force of such by-laws, as against its liability under the certificate.

2. Same—By-laics of Which the Insured Has No Notice.—Under the facts of this case it is held that the insured was not bound by the provisiofis of by-laws of the existence of which he had ho notice.

Assumpsit, on a certificate in an accident insurance association. Appeal from the Circuit Court of Cook County; the Hon. Elbridge

*643Hanecy, Judge, presiding. Heard in this court at the March term, 1895.

Affirmed.

Opinion filed May 16, 1895.

Appellee's instruction, referred to in the opinion of the court:

The court instructs the jury as a matter of law, that if the plaintiff was insured or assured a member of the defendant society, and at the time said insurance was procured the general agent of the society, whose business it was to know, represented to the plaintiff that a certain set of by-laws was in force, the defendant is estopped from denying the existence or force of said by-laws in this suit.

Clark Varnum and W. C. Anderson, attorneys for appellant.

It is contended that all the contracts of a mutual insurance association or company are made with reference to all the laws of the organization, and such laws, whether contained in the charter or by-laws, are deemed a part of each contract of membership, and are binding on all members. Citing Supreme Lodge K. of P. v. Knights, 117 Ind. 489; Bogards v. Farmers Mut. Ins. Co., 79 Mich. 440; Insurance Co. v. Barstow, 8 R. I. 343; Commonwealth v. Insurance Co., 112 Mass. 142; Same v. Same, 112 Mass. 116; Insurance Co. v. Gackenbach, 115 Pa. St. 492; Training School v. Insurance Co., 18 At. Rep. 393; Shaw v. Nat. Ben. Assn., 7 N. Y. Supp. 287; Sands v. Shoemaker, 4 Abb. App. Dec. 149; Planters Ins. Co. v. Comfort, 50 Miss. 62; Bersch v. Ins. Co., 28 Ind. 64; Holland v. Chosen Friends, 25 Atl. Rep. 367; Accident Assn. v. Burr, Sup. Ct. Heb., Mch. 5, ’95.

The mutual rights of members of mutual benefit associations, whether voluntary or corporate, depend upon the constitution and by-laws, which have the effect of a contract, whose provisions are binding upon all. Bauer v. Sampson Lodge K. of H., 102 Ind. 262; Maderia v. Merchant’s Exchange Society, 16 Fed. Rep. 749; Karcher v. Knights of Honor, 137 Mass. 368; Penfield v. Skinner, 11 Vt. 296; Treadway v. Hamilton, 29 Conn. 68; Walsh v. Ætna, etc., Ins. Co., 30 Iowa 145; Mitchell v. Lycoming Mut. Ins. Co., 51 Pa. St. 402; Brewer v. Ins. Co., 14 Gray 203; Covenant Ben. Assn. v. Spies, 114 Ill. 463, 468.

Henry C. Hoyes, attorney for appellee.

*644Mr. Justice Shepard

delivered the opinion of the Court.

The appellee brought suit against the appellant for an injury sustained by an accident. He was the holder of a policy, or certificate of insurance, against accidents, issued by the appellant. The accident occasioned hernia, or rupture. He recovered, before the justice of the peace, and again in the Circuit Court, upon the verdict of a jury. Ho question is made but that if anything is due to appellee the judgment is for the correct amount. The defense is that the appellee was not insured against hernia.

The appellant is an Iowa corporation. One J. W. Dins-dale was general agent of the appellant in Chicago. The application was made by the appellee to Hinsdale, in Chicago, and was forwarded by the latter to the appellant at its home office in Bes Moines, Iowa, where the certificate of membership was issued and transmitted back to Hinsdale, who delivered it to appellee. The application bore date, “ Bee., 1893,” and the certificate bore date “ this 22nd day of Becember, 1893.”

The certificate recites; that it was issued in consideration of the warranties in the application, and that appellee was accepted by appellant as a member “ subject to all the conditions and provisions of the articles of incorporation and by-laws thereof,” and makes such conditions and provisions conditions precedent to the accruing or payment of benefits.

The controversy seems to have grown from the fact that the appellant had two sets of by-laws, one set from its organization in 1889, to May 16, 1893, and another set from that date.

Hinsdale was made manager of the appellant’s agency in Chicago, in Hovember, 1893. He testified that at the time he accepted the agency he told the secretary of the appellant that he would not take the agency without being shown a copy of the by-laws, and that the secretary replied that he had no copy of them with him, but would send them to him, Hinsdale. This occurred about a week or two before appellee’s application for membership was taken. The sec*645retary afterward sent from the home office the printed copy of articles of incorporation and by-laws of the appellant which were offered in evidence by appellee, to Dinsdale, who showed and read them to appellee at the time he made application for membership. No other by-laws were ever seen or known of by the appellee.

Neither in the application, the certificate of membership that was issued to appellee, the articles of incorporation, nor in those by-laws, was there any reference to hernia as an excluded risk or liability. Whether there were other by-laws adopted by the appellant and in force from May 16, 1893, wherein hernia was an excluded risk, it is not necessary to inquire.

The conduct of the appellant, through its agents, in representing to the appellee at the time the membership certificate was issued that the printed by-laws that were exhibited and read to him were the by-laws of the appellant then in force, estopped the appellant from denying, afterward, their existence and force as against its liability under said certificate.

The instruction that the court gave for the appellee on that point correctly stated the law. And it was not error for the court to refuse to give the ninth instruction asked by the appellee, under which the doctrine of estoppel applicable to such cases as this would be denied.

The court likewise properly refused to give the tenth instruction asked by appellant. The written notice there referred to was required only by the new by-laws of which appellee had no notice.

The by-laws which were shown and read to appellee by the general agent contained no requirement as to giving notice within ten days of the injury, and it was with reference to them that the contract was made.

Proof of notice was made, however, probably in pursuance of a requirement printed on the back of the certificate. The record, however, shows most clearly that it was not because of lack of notice, but because of the nature of the injury that the appellee’s claim was refused payment.

*646In none of the negotiations that were had was insufficient notice claimed by the appellant, but on the other hand notice was recognized as having been given, and it was because of what the notice disclosed, viz., hernia, as the injury, that appellee’s claim was rejected.

Upon the whole record, the judgment of the Circuit Court should be affirmed, and it is so ordered.

Mr. Presiding Justice Watjcbman dissents.