#### Asserin, Respondent, vs. Modern Brotherhood of America, Appellant.

*November 17*

December *5, 1911.*

*Appeal: Review: Findings by jury: Benefit insurance: Payment of dues: Application for reinstatement: Signature.*

1. Findings t>y a jury will be disturbed on appeal only where there is no evidence to sustain them, or where the weight of evidence is against them and is so reinforced by all reasonable probabilities and inferences that it becomes overwhelming.

2. In an action upon a benefit certificate which defendant claimed had become void because of nonpayment of dues, findings by the jury to the effect that the assured had seasonably paid the dues in question, and that an application for reinstatement purporting to be signed by the assured was not in fact signed by her, are sustained upon conflicting evidence.

Appeal from a judgment of the circuit court for Milwaukee county: Oeeeit T. Williams, Circuit Judge.

*Affirmed.*

The defendant is a foreign fraternal beneficiary corporation, and on November 30,1905, issued its certificate of mem*521bership to one Margaret Haas, agreeing thereby, in consideration of tbe payment of regular monthly dues, to pay out of its mortuary fund to the plaintiff (the mother of the insured) a sum equal to one full assessment on all members in good standing, but not exceeding $1,000, within ninety days after receipt of satisfactory proofs of death of the insured. The insured died May 30, 1909, and proofs of death were immediately furnished. The defendant, however, refused to pay any amount on the certificate, although admitting that one full assessment upon members in good standing would amount to the sum of $1,000. Thereupon the beneficiary brought this action, and the defendant answered, claiming that the insured failed to pay the monthly assessment which was payable in December, 1906, and thereby ceased to be a member in good standing, and that her certificate was thereby rendered void by its own terms. The defendant further alleged that the insured made written application'for reinstatement February 15, 1907, and warranted that she was then in good health, whereas she was then suffering from consumption; that she was reinstated as a member and allowed to pay the past-due assessments or dues, but that such reinstatement was null and void, because based upon the said false warranty of health, such application containing the express provision that it was to be void in case such warranty were untrue.

The jury returned a special verdict as follows:

“(1) Did Margaret Haas pay the No. 12 monthly assessment and dues to Secretary Finn during the month of December, 1906 ? *A.*Tes.

“(2) Was Margaret Haas a member in good standing of the *Modern Brotherhood of America*at the time of her death on May 30, 1909 ? *A.*Yes.

“(3) Was the so-called certificate of health for application for reinstatement, which is dated February 15, 1907, signed by Margaret Haas? ■ *A.*No.

“(4) At what sum do you assess plaintiff’s damage? *A.*$1,000 and interest”

*522Tbe defendant moved for judgment notwithstanding tbe verdict, also to change tbe answers to tbe questions of tbe verdict, and for judgment thereon as amended. It also moved to set aside tbe verdict, and for a new trial in case tbe preceding motions were denied. All these motions were denied, and judgment was rendered for tbe plaintiff on tbe verdict, from which tbe defendant appeals.

*Harry M.*Silber, for tbe appellant.

Eor tbe respondent there was a brief by *8. M. Williams*and *Porter &*Hazelwood, and oral argument by *Mr. Williams.*

WiNSLOw, C. J.

Tbe defendant’s contention is that a verdict for tbe defendant should have been directed, because it was conclusively proven that tbe insured failed to pay tbe December, 1906, dues at any time during that month. One Firm, tbe local secretary of tbe defendant, who collected tbe monthly dues, testified directly that tbe .December dues were not paid during that month, and that Miss Haas made an application in writing for reinstatement February 15, 1901 (which application be produced), and that she was reinstated at that time upon payment of tbe unpaid dues, in reliance upon tbe representation in tbe application that she was then in good health. Finn also produced bis boobs, and tbe entries therein tended to corroborate bis statements with regard to tbe nonpayment of tbe December dues and tbe payment of all arrears of dues in February. It was admitted by tbe plaintiff that tbe insured was ill with consumption in February, 1907, hence it resulted that if in fact tbe insured defaulted in tbe payment of tbe December dues there could be no recovery, because tbe certificate was thereby rendered void by its terms and tbe reinstatement was vitiated by tbe false representation of health. Tbe plaintiff claimed, however, that tbe December dues were in fact paid upon tbe first day of that month, and denied tbe authenticity of tbe alleged application for reinstatement. In support of her contentions she produced a *523receipt for the December dues in regular form, dated December 1, 1906, and signed by Mr. Finn, likewise a receipt for the January, 1907, dues, dated January 1, 1907, and a receipt for the February, 1907,- dues, dated February 15, 1907, and she testified on examination of the supposed application for reinstatement that the signature thereto did not look like her daughter’s signature. She also produced another witness who was somewhat familiar with the signature of the insured, who testified that the signature to the application did not look like the signature which he had received from her in correspondence. FTo one saw her sign her name to the application, and the defendant’s testimony on the subject was confined to that of an expert in handwriting, who from examination of the signature and comparison thereof with her admittedly genuine signature on the original application testified that in his opinion both signatures were written by the same person.

Were we approaching these questions as triers of the fact we might well find not only that the plaintiff had not proved her case by the preponderance of the evidence, but that the preponderance was clearly on the other side, but we do not approach them in that way. The issues of fact have been tried by the jury, and we cannot reverse the jury’s findings unless there is no evidence to sustain them, or unless the great weight of the evidence is against them, and that weight of evidence is so reinforced by all reasonable probabilities and inferences that it becomes overwhelming. *Bannon v. Ins. Co. of N. A.*115 Wis. 250, 91 N. W. 666. We cannot say that either condition exists here.

*By the Court.*— Judgment affirmed.