52 So. 698 | Miss. | 1910
The original bill in this case was filed by Hammond Grant against the Independent Order of Sons and Daughters of Jacob, and Maggie Nicholson; the effort being on the part of Hammond Grant, the husband and only heir of the deceased, Maria Grant, to recover the proceeds of an insurance policy taken out by Maria Grant in this order for an amount not to exceed $700. The order paid into court the sum of $550, to be contested for by Maggie Nicholson and Hammond Grant, and it was thereupon discharged. "When the case came on to be tried, certain witnesses were introduced for the complainant and examined, but not cross-examined by the respondent. The chancellor stated that he thought the case turned upon a pure question of law, and thereupon by agreement of counsel on both sides no more witnesses were introduced, although the complainant had more witnesses and the defendant had witnesses also, and it was then and there agreed for the purpose of the trial that the following were the facts of the case, to wit:
“That Hammond Grant had legally and lawfully married Maria Moore (at that time Maria Smith), the insured, in the year 1883; that he lived with her several years, and that he went to New Orleans on account of a jealous'quarrel; that there was never any divorce had between him and Maria Moore, and that he never afterwards lived with her as her husband; that while complainant was in New Orleans Maria married Alex. Moore in
The constitution and by-laws of the order are made exhibits to the pleadings. The appellant insists that the decree should be reversed for two reasons: First. Because the policy was a wagering policy, and therefore void as against public policy, though the bill makes no attack on the policy as a wagering contract. Second. Because the policy is governed, as it is insisted, by the following provision in the constitution and by-laws of the order, adopted in October, 1906, to wit: “Death benefits of the order shall be paid only on the death of such members of the order as at death hold a financial membership in the order and leave executed as required by the order on prescribed blanks of the order, and benefit certificate through a stibordinate lodge or through a Royal House of King David; provided, however, one by financial membership and executed certificates of the order, both in a subordinate lodge and Boyal House of King David, may have paid on his death a benefit of each of said divisions. No one shall be a beneficiary of any Jacob benefit or benefit certificate except a husband, a wife, or some legal dependent or dependents of the member of his or her (that is, the members) estate” — on the notion that this provision is retroactive. The first thing to be observed is that we are bound clearly to look only to those facts which are set out in the agreed statement of facts. If counsel below have been so unfortunate as to omit out of this agreed statement facts which they desired
On the second proposition, the facts show the following state of case: The charter under which the original policy was issued contained the following provision: “To establish and maintain a benefit fund,” etc., “to be paid at the death of each third degree member in good standing, to his or her family, or dispose
On this point it is said by Mr. Freeman, in the most valuable note to Strauss v. Mutual Reserve Association, 83 Am. St. Rep. 714, as follows: “Even where a benefit society has reserved the power to amend its by-laws, so as to affect the rights of pre-existing members, a new by-law or an amendment will not be interpreted to be retroactive in its operation, unless by its terms it is clearly intended to be so; but such law will be construed as operating only on cases that come into existence after it was passed. Wist v. Grand Lodge, 22 Or. 271, 29 Pac. 610, 29 Am. St. Rep. 603; Knights Templars, etc., Co. v. Jarman, 104 Fed. 638 [44 C. C. A. 93]; Ancient Order United Workmen v. Brown, 112 Ga. 545, 37 S. E. 890; Lloyd v. Supreme Lodge, 98 Fed. 66 [38 C. C. A. 654] ; Roberts v. Gohen, 60 App. Div. 259, 70 N. Y. Supp. 57; Spencer v. Grand Lodge, 22 Misc. Rep. 147, 48 N. Y. Supp. 590; Carnes v. Iowa, etc., Ass’n, 106 Iowa, 281, 76 N. W. 683, 68 Am. St. Rep. 306; Roxbury Lodge v. Hocking, 60 N. J. Law, 439, 38 Atl. 693, 64 Am. St. Rep. 596.
In Knights Templars’, etc., v. Jarman, 187 U. S. 205, 23 Sup. Ct. 111, 47 L. Ed. 139, it is said on this point: “Were the act of 1887 more ambiguous than it is as to its application to past transactions, we should still be disjDOsed to apply the cardinal rule of construction, that where the language of an act would bear two interpretations equally obvious, that one which is clearly in accordance with the provisions of the constitution .is to be preferred.” In Cooley’s Briefs on Insurance, vol. 1, p. 710, it is said: “But even under such an agreement [one to be bound by laws enacted in the future] it is obvious that the members will not be bound by such laws as indicate on their face that they apply only to certificates thereafter to be issued” — citing .the ease we have just above quoted from in 187 U. S. 205, 23
Nor does the provision of the constitution and laws of 1906 (page 41 of Exhibit 4) at all affect this construction. That provision, taken in, connection with the other provisions of the constitution and by-laws of 1906, clearly shows that they are prospective wholly, and in no way affect the certificate issued to Maggie Nicholson before their passage. It becomes unnecessary, in view of the fact that we hold these provisions in the constitution of 1906 to be prospective only, to discuss the question whether, if they had been meant to be retroactive, they could be held to be reasonable and valid. On that point the following authorities may be profitably consulted: See, specially, Dodwall v. Supreme Council, etc., 196 N. Y. 405, 89 N. E. 1075, and Wright v. Knights of Maccabees, etc., 196 N. Y. 391, 89 N. E. 1078; Modern Woodmen of America v. Wieland, 109 Ill. App. 340; Cooley’s Briefs on Insurance, 710 et seq., especially paragraph 1, page 711, and paragraph N, p. 715, and paragraph O, p. 719; Wist v. Grand Lodge A. O. U. W., 22 Or. 271, 29 Pac. 610, 29 Am. St. Rep. 603; and most particularly see the very valuable note to Strauss v. Mutual Reserve Association, 83 Am. St. Rep. 706, and the main case to which the note is appended, and Stewart v. Lee Mutual Fire Ins. Ass’n, 64 Miss. 499, 1 South. 743, in harmony with tire Strauss case in 126 N. C. 971, 36 S. E. 352, 54 L. R. A. 605, 83 Am. St. Rep. 699; Spencer
The constitution and by-laws of 1906 in this case affected only those members who became such after the adoption of said constitution and by-laws.
The above opinion is adopted as the opinion of the court; and, for the reasons therein stated, the decree is affirmed.
Afjh'med.