(dissenting). The plaintiff’s husband was a member of the order of the Supreme Body of the International Congress, a mutual benefit association, having been admitted upon an application containing the following agreement:
“This application and the laws of the supreme body now in force or that may hereafter be adopted, are made a part of the contract between myself and the supreme body, and I for myself and my beneficiary or beneficiaries, agree to conform to and be governed thereby.”
The certificate issued upon said application was for $1,000, payable to himself and wife as beneficiaries, and was expressly made subject “to the rules, regulations, and by-laws of the defendant then in existence, or which may *380thereafter be adopted and subject to the conditions, limitations, and agreements made by the insured in his application for membership.”
Before and at all times after he became a member the following by-law, numbered section 54, was in force:
“The supreme board of trustees shall have full power to suspend a benefit member from all of the benefits of the order whenever a complaint is made by the commissioner, record keeper, or finance keeper of a subordinate assembly, or by a deputy supreme commissioner, or deputy grand commissioner, that such member has obtained his membership by false representations' as to his age, physical condition, habits, or occupation at the time of his admission, or who may after his admission become addicted to the use of opium or narcotics, or form habits which may injure the health or endanger the life of said member. Such suspension shall be binding on the member without a formal trial until the member has by evidence convinced the supreme board of trustees that such complaint has no foundation, which he must do within thirty days from the date of notice mailed him by the supreme record keeper of the filing of such complaint. The findings and decisions of the supreme board of trustees in all such cases will be final. The supreme board of trustees may reinstate a member so suspended, if at any time it may appear that the cause for such suspension has been removed.”
Under this he was suspended March 29, 1900, and on April 27, 1900, he was reinstated on furnishing an affidavit of good health. He died of cancer in July, 1901. Sections 55 and 102 of the by-laws are as follows, viz.:
“Sec. 55. The supreme board of trustees shall pass on all death claims arising from the death of a member holding a supreme body benefit certificate, and on all disability claims. If in its .judgment any such claim is not a valid one, they shall notify the claimant of disability benefits, or the beneficiaries or beneficiary of the deceased member thereof, and fix a time which shall not be less than sixty nor more than one hundred and twenty days from the date of such notice when the claimants or their attorneys may appear before the supreme board of trustees, at the office of the supreme record keeper, or some other place tó be designated by the supreme board of trustees, and present *381such evidence, either orally or by affidavit, as they may have to establish the justness of said claim, and the said supreme board of trustees shall try, hear, and decide upon the justness and validity of such claims, and their decision shall be binding on such claimants unless an appeal is taken to the supreme body. The notice of such appeal from the decision of the supreme board of trustees must be filed with the supreme record keeper within sixty days thereafter. The decision of the supreme board of trustees, unless an appeal is taken to the supreme body, in all such < cases shall be final, and no suit at law or in equity shall he commenced or maintained by any member or beneficiary against the supreme body.”
“Sec. 102. It (the supreme body) shall have the power, when an appeal is made under the laws of the order from the action or findings of the supreme board of trustees, to decide as to the validity of all death claims, or any other claim which a member may have against it, and its decision shall be final and binding upon every member and his beneficiaries, and no suit at law or in equity shall be commenced or maintained by any member or beneficiary against the supreme body.”
Proofs of death were seasonably made, and the claim was disallowed by all of the tribunals of the order. Thereupon the plaintiff brought this action upon the con- , tract in a court of law, and recovered a verdict and judgment for $1,110.90, and costs, from which judgment the defendant has appealed.
The real question in this case has to do with the efficacy of the rule contained in sections 55 and 102 of defendant’s by-laws, by consenting to be bound by which the deceased took his insurance, upon an agreement that the decisions of the order should be binding upon him and his privy, the beneficiary, whomever might ultimately he such, and that no suit at law or in equity should be commenced or maintained upon the claim.
It would seem to be a very simple proposition that when one made such an agreement he would be bound by it, and could under no circumstances bring an action at law or in equity against the association, if such agreement was valid. That such an agreement is valid is beyond ques*382tion, and is admitted in this case. It is claimed, however, that the plaintiff is not bound by it under the circumstances of this case, and that in the face of such agreement the beneficiary may still resort to a court of law to enforce a claim upon a policy. Before entering upon an inquiry as to this question, we will set forth the facts upon which counsel predicate their claim that the case is exceptional.
Upon the presentation of the claim of loss the trustees gave the notice provided for in section So, and upon the hearing the supreme board of trustees rejected the claim. At said hearing the plaintiff was represented by counsel. Counsel for plaintiff assert that there was evidence tending to show that deceased was in good health down to 1899. Deceased’s application was also introduced, stating that he had never had cancer; also the proofs of loss showing that he died of cancer, and had been ill for two years; also his affidavit, made April 14, 1900, stating that on the date of his examination for insurance, and up to July, 1899, he was in sound bodily health, to the best of his knowledge and belief, and upon which affidavit he was reinstated. It is stated further that the only other testimony of any kind was a statement by Mr. Harris, defendant’s general manager, that he saw deceased’s physician, one Robbins, who said that deceased came to him first in January, 1900, and stated that he began to be sick in February, 1899, and lost SO pounds from that time to the time of his consulting said physician. This statement was objected to as incompetent, and hearsay, and privileged, and that, therefore, the board had no right to consider it.
Upon the appeal the affidavit of Dr. Robbins, who was the physician referred to, was introduced, in which he made oath to the conversation stated by him to Harris. Plaintiff’s counsel was not present. He had correspondence with the defendant about it, as follows:
“J. 0. Becraft,
“ Dowagiac, Mich.
ilDear Sir: Yours of yesterday at hand with reference to the appeal of Mrs. Dick under Certificate 3,090. I am *383entirely ignorant of the method of procedure in these appeal matters, and I assume that the matter will be taken up on affidavits and showing already on file before your Board.
“Will you kindly advise me if I am correct in that respect, and also whether it would be necessary or advisable for either Mrs. Dick or myself to be present. ”
“Hon. J. B. Whelan, Justice,
“Detroit, Mich.
“Dear Sir: Your letter to J. O. Becraft, Supreme Record Keeper of the International Congress, has been sent by him to me for reply. You will recollect that I am one of the trustees of the organization. The affidavits and showing made before the Board of Trustees can be used on the appeal; either party can present any additional evidence they desire. It will not be necessary for you or Mrs. Dick to be present unless you desire to be. I will see that the matter of the appeal is submitted to the Supreme Body whether you are there or not if you so -desire.”
“Hon. W. G. Howard.
“Dear Sir: In reference to the Dick claim, I think we will leave it to you to present to the Supreme Body as you suggest in yours of the 13th inst. You all know the facts in the matter, and I could do no good by coming out.
“ Please have the Secretary notify me of the action taken by the Supreme Body and oblige.”
“John B. Whelan,
“ Detroit, Mich.
“Dear Sir: In further answer to your favor of July
'9th, 1902, filing appeal in the claim of Emma Dick, beneficiary under Certificate No. 3,090, I beg to advise you that the Biennial Meeting of the Supreme Body will will be called to order at 1 p. m. Tuesday, March 3rd, 1903. Yours truly,
“J. O. Becraft,
“Supreme Record Keeper.
“ Die. J. O. B.”
The following is a copy of Robbins’ affidavit:
“Frederick W. Robbins, M. D., of the city of Detroit, in -the said county and State, being duly sworn, says: ■That he is a practicing physician in the city of Detroit, -and has been for a period of eighteen years last past, and *384as such physician attended John A. Dick, deceased, in his lifetime. Then he diagnosed said Dick’s ailment for the first time January 25, 1900. That said Dick stated to deponent at the time of said diagnosis, that he (Dick) first began to be sick and lose flesh in February, 1899, and from that date up to January 25, 1900 (being the time of said diagnosis), he (the said Dick) had lost fifty pounds in flesh. That deponent, on making said diagnosis, found that said Dick was suffering with cancer of the stomach. At that time could feel no nodular tumor, but' a sense of resistance, as if the stomach wall was thickened. On February 6, 1900, hydrochloric acid was absent; lactic acid was present; a tumor was well marked. Thus the previous diagnosis confirmed. Up to this time there is no reason to believe that the said Dick thought himself to have other than chronic dyspepsia. The above facts concerning the diagnosis of said John A. Dick are entered in a boob of record of my cases which I keep.”
All of the evidence taken upon, the first hearing was laid before the supreme body, as counsel for plaintiff had reason to expect it would be from the correspondence.
The following are the minutes of that trial:
“ Extractions from the minutes of the biennial meeting held March 3rd and 4th, 1903.
“ Committees on Appeals and Grievances:—P. P. Harris, Jere Mosher, H. M. Lee.
“ The report of the Committee on the claim of Emma C. Dick, beneficiary under Certificate No. 3,090 was then read. The report of the committee is as follows:
“The claim of Emma C. Dick as beneficiary under Certificate No. 3,090 for $1,000.00 issued to John A. Dick, late a member of Cadillac Assembly No. 40, of Detroit, Michigan. John A. Dick was examined for membership of the Order under date of December 23, 1898, and was initiated as a member February 6th, 1899, and his certificate of membership was issued March 7th, 1899. On July 12th, 1901, notice was received of his death July 10th. The Committee find the facts as follows:
“The claim was presented to the Board of Trustees and rejected July 3rd, 1902, and an appeal was taken to this Body. Your Committee return, as part of their report, the evidence bearing on the case for the action of the Supreme Body. It is the opinion of your Committee that the action of the Board of Trustees is correct in this in*385stance, still the whole matter is before the Supreme Body for its action.
“ The evidence was then read to the Supreme Body in full, on both sides of the case, and, after considering and discussing the same, it was moved by Brother Fassett, supported by Brother Chandler, that the claim of Emma C. Dick as beneficiary under Certificate No. 3,090 issued to John A. Dick for $1,000.00, brought to this Body by the said claimant on appeal, he, and the same is, hereby rejected. Carried unanimously. ”
From the foregoing it appears that at the first trial plaintiff was represented by counsel, and could have been at the second. He knew that the evidence previously taken would be introduced at the second, and that other evidence might be. ■ It is apparent that there was, to say the least, a plausible reason for believing that the deceased had misrepresented his true condition, and apparently the defendant’s officers so believed, and acted honestly in the rejection of the claim. It is stated by defendant’s counsel that “no active fraud or bad faith on the part of the defendant is claimed in this case,” and this is not denied.
The court charged:
“I do not charge, and it is not charged here, that this defendant organization was guilty of any moral bad faith, or any fraud, but they were guilty of legal bad faith in hearing this appeal in the manner in which it was heard.”
. And plaintiff’s brief states the question before us thus:
“ The only question presented, then, upon this record, is whether a hearing before the tribunals of the order, wherein the only evidence against the claim was a physician’s statement of matters which he claimed to have learned from Mr. Dick while acting as his physician, and which were necessary to enable him so to act, and the disclosure of which are therefore forbidden by statute, which evidence was on this ground objected to by plaintiff’s attorney, is such a hearing, and whether the decision rejecting the claim solely on this evidence is such a decision, as to bar a suit at law.”
She admits the validity of the by-law, but asserts that it does not preclude a suit; that where, “ owing to fraud or *386oppression, the hearing provided for by the rules of the order is not such as the party is entitled to, an action at law is maintainable;” and says that “ the hearing and decision [of the order] will be vitiated by a disregard of common fairness;” and that “in the case at bar the requirement of common fairness was disregarded by receiving, against objection, a physician’s statement, made in violation of the statutory prohibition, of a disclosure claimed to have been made to him by the assured to obtain his medical assistance;” citing 3 Comp. Laws, § 10181.
At the same time she admits that a hearing is not vitiated because the tribunal failed to comply with the technical rules governing courts in the admission of evidence, and this is clearly the rule, as indicated by the cases which she cites; i. e., Derry v. Great Hive L. O. T. M. M., 135 Mich. 494; Barker v. Great Hive L. O. T. M. M., 135 Mich. 499. We are not aware that it has ever been held that ex parte affidavits and hearsay evidence may not be received and acted upon by such tribunals. They are often convincing, especially when made under strong corroborating circumstances. They are excluded in courts of law under the law of evidence; but can we say that such tribunals as this may not adopt their own rules of evidence ? If that right may not be inferred from the two cases last cited, the contrary is certainly not implied.
Counsel apparently concede that there was no fraud. The only oppression mentioned consists in admitting evidence prohibited by-the statute. If this was received in good faith, it can hardly be said to have been oppressive. Furthermore, if the society might settle its own rule of evidence, it might lawfully hear this testimony.
The statute is entitled to no such broad interpretation as is claimed for it. It is merely a rule of evidence. It has appeared under the title “Evidence” in the statute ever since the compilation of 1838, and should not receive a construction that would prohibit a communication by a physician to another person. We do not intend to imply, by our failure to deny it, that the rule contended for as to *387fraud and oppression is the law. Plaintiff’s counsel cite Rose v. Supreme Court, Order of Patricians, 126 Mich. 577, in support of the claim. That is a case where the plaintiff was denied a trial by the courts of the order, which is a different question from that before us. See Barker v. Great Hive L. O. T. M. M., 135 Mich. 499. There are Michigan cases which hold that such agreements as the one before us are binding, except where .fraudulent (see Hembeau v. Knights of Maccabees, 101 Mich. 165; Fillmore v. Knights of Maccabees, 109 Mich. 13), but in neither of these cases was a jurisdiction based on such fraud or oppression sustained.
"We have frequently alluded to the danger of rules based ■on such foundations, and, as the facts of this case do not justify a discussion of the question, we think it better to leave it until we have before us a case of “fraud or oppression ” in the proceedings.
The judgment should be reversed, and a new trial ordered.
Grant, J., concurred with Hooker, J.