Mathews v. Modern Woodmen. accepted out of hand by plain people, the uninformed and unlearned, the unwary and confiding. Insurance policies swarm with intricate technical provisions, stipulations, exceptions, conditions, provisos, limitations, hedging liability about and looking to its avoidance. It is not singular then that courts incline to pit judicial astuteness against the astuteness of the policy-maker, the latter planting forfeitures in ambush or open, and the former striving to avoid them. In Dezell v. Fidelity and Casualty Co., 176 Mo. 1. c. 265, our brother VALLIANT speaking for us said: "Courts do not favor forfeitures, nor do they favor the defeat of a meritorious cause on any purely technical ground. Insurance companies have probably realized that fact more clearly than any other class of business concerns. And not only have the legislatures exerted their authority in such matters, but the courts of the country also have strained the discretion that lies in the scope of judicial interpretation to prevent a forfeiture of the insurance. Sometimes the reasoning of the court in such case is so technical that to the mind of the layman it but thinly disguises the praiseworthy determination to do justice in that particular case in spite of the letter of the contract." That language is applicable to both fire and life insurance, nor have we any call to exclude fraternal benefit certificates therefrom. This, because, whatever may have been the case at the origin of that form of insurance (when social and fraternal features were far in the ascendancy, from head authority down to local lodge, and insurance was a mere incident), those who now prepare policies for fraternal societies recognize that insurance is the principal thing, and they have come to imitate old-line insurance companies in ranging about the principal obligation rows of intricate and highly technical exceptions, provisos and limitations, that, in the language of Justice WILLIAMS in Mathews v. Modern Woodmen. Boyle's Sons v. Ins. Co., 169 Pa. St. 1. c. 355, "stand bristling like armed sentinels around the contract and the liability of the company thereunder, ready to impale even an honest claimant on a bare technicality." The insurance policy in suit is a typical one of its kind. Its elements are drawn from several sources -by-laws, application, etc. The provisions thus brought together in a policy-bundle create ambiguities and seeming contradictions, crying aloud for elucidation and harmonizing. They must be brayed in the mortar of reason with the pestle of good sense. Quickened by such precepts and admonitions, we come to a closer view of the case. (2). Reading the questions, answers and statements of the application together with the by-laws into the policy (as its terms require should be done), it appears that some of the by-laws provide for forfeiture in case the member becomes a bartender. But those by-laws must be construed in connection with the third written question propounded in the application, viz.: "Do you understand and agree that this order does not indemnify against death from suicide or death resulting from occupations prohibited to its members by its laws?" It seems to us there is great significance coiled up in that question. When it was propounded to Mr. Mathews his answer was, "Yes.' Presumably the application was the sober and careful handiwork of defendant. It had an obvious purpose. Thereby defendant talked to Mathews and gave voice to its own view of the scope and character of its own indemnity contract. By necessary implication, does not that question mean that the insurance defendant offers, the indemnity, does not extend to death "resulting" from prohibited occupations? Does it not thereby say to Mathews if you do not go into a prohibited occupation, the indemnity is general, but if you go into a prohibited occupation and death results Mathews v. Modern Woodmen. from such occupation, I will pay nothing to your wife? Speaking of warranties (whether affirmative or promissory) and representations (whether affirmative or executory), the question spontaneously obtrudes itself, viz.: Is it alone the applicant who can make them or be impaled by them? May not defendant also impale itself on such hook? Did not this defendant, by asking that question of Mathews and in saying to him, "Do you understand and agree" to that effect, by the same token also "agree," by way of a promissory warranty or an executory representation (it taking two to make a bargain), that the indemnity of the policy was not forfeited by a prohibited occupation unless death "results" therefrom? Is not that question, is not that answer and is not that agreement, ex vi termini, read into the policy and writ large there? We think so. Therefore, we are no more at liberty to cause that provision of the policy to perish by construction, than we are at liberty to cause the provisions relied on by defendant to so perish. Our duty is to give effect to them all by harmonizing them if that can be done. To that task we address ourselves. Counsel suggest the seeming policy contradictions may be harmonized by construction, giving them all due play and office by construing the contract to mean as if it read this way: "It is agreed between the parties hereto as follows: In consideration of the payment of Robert J. Mathews of the initiation fee (now received) and the prompt payment of all dues and assessments hereafter levied, the Modern Woodmen of America (a corporation) does hereby insure the life of the said Robert J. Mathews in the sum of two thousand dollars for the benefit of Ida Mathews, his wife, subject to the by-law of this corporation which provides that should any member engage in any of the occupations by said by-law prohibited his certificate shall become forfeited, and no indemnity shall be paid Mathews v. Modern Woodmen. to his widow, provided death results from his engaging in such prohibited occupation; and it is further agreed that no warranty made by the said Robert J. Mathews in obtaining or securing this insurance shall be deemed material or render this insurance void unless the matter unwarranted against shall have actually contributed to the death of the said Robert J. Mathews." Allowing for ambiguities and solving them in favor of the insured, allowing for seeming contradictions and smoothing them away by construction so that all substantive provisions may be given some life, and all substantive limitations assigned some office, we are of opinion that the foregoing view of the contract is in substance the common-sense of it and results in no injustice. Thereby the widow is dealt tenderly with, all doubts are solved in her favor, and peradventure the basic principles of fraternity and brotherhood are in no wise wounded or subverted. (3). We are asked by defendant to rule that section 7890, supra, relates to representations made of existing facts, and not to executory promises or promissory warranties. We are asked by plaintiff to rule that section 7890, when construed in the light of the reason of the law, is broad enough to include all warranties whether as to existing facts or conditions that may spring into existence in the future. It has been ruled that the word "misrepresentation" used in that section includes warranties. [Jenkins v. Mutual Life Ins. Co., 171 Mo. 382.] But the court in that case did not hold in judgment the kind of warranty counsel for plaintiff have in mind. The warranty dealt with in the Jenkins case was one pertaining to a fact existing when the insurance was taken out. The breach of warranty there counted on related to the health of the insured at the time the application for the policy was made. The case, there Mathews v. Modern Woodmen. fore, is no controlling authority on the question confronting us. The language of the statute is: "No misrepresentation made in obtaining or securing a policy of insurance shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed," etc. The phraseology is inapt to cover promises referring to the future and to be kept or broken after the policy takes effect. A provision of somewhat similar character in the statute relating to fire insurance has been construed that way. [Hoover v. Ins. Co., 93 Mo. App. 111.] If put to it, we could assign no sufficient reason why the lawmaker did not write the law to cover promissory warranties or executory agreements -the future as well as the past and present; for if an applicant conceal or misrepresent an existing fact and that misrepresentation does not avoid liability except where the matter misreprsented actually contributes to the contingency or event on which the policy is to become due and payable, no good reason at first blush occurs to us why the same statute should not have gone on to include promissory warranties, the breech of which do not contribute to the same contingency or event. But a statute may stand: Stat pro ratione voluntas. It will be time enough to construe the law the way plaintiff insists when, if ever, the lawmaker writes a statute so couched as to be fairly susceptible of that construction. This one is not so written. But the foregoing view is not fatal to recovery, even with that limitation on the statute; for construing the application, by-laws and policy as one instrument and as constituting the contract (as we have done in a former paragraph), such contract is equivalent to what plaintiff's counsel insist the statute means. (4). Hitherto we have not determined what force should be given to the amended by-law of 1897 (Sec. |