34 Colo. 1 | Colo. | 1905
delivered the opinion of the court.
The questions. presented for our determination by this record are whether the trial court erred in its conclusion that the appellee was entitled to have the amounts paid on account of what is termed the equalization fund, her portion of the alleged excess in the benefit fund and the amount paid on the 8th of December, 1900, applied in payment of the additional assessments incurred by reason of her husband engaging in the business of railway freight brakeman.
It is contended by appellee that these three items were collected by appellant without authority, and that appellee is entitled to have the same applied as above stated. This contention is based upon the ground that the sections of the constitution providing for the creation of an equalization fund and for the payment of the benefit assessment monthly in advance, in each month, instead as theretofore, after claims for death losses had been presented and approved are void: First, because these changes of the fundamental law and by-laws were made at meetings of the head camp held outside the state of Colorado,- second, because such amendments impair the obligation of the original contract with the assured, and are not within the power of amendment reserved to the order.
1. Upon the first proposition we think the court
2. We are also of the opinion that the second proposition cannot be maintained. .The certificate issued to Woods provides that while in good standing he is entitled to participate in its benefit fund to be paid at his death to the appellee, “subject to all the conditions named in this certificate, and named in its fundamental laws, and liable to forfeiture if said neighbor shall not comply with said conditions, laws, and such by-laws and rules as are, or may be adopted by the head camp or the local camp of which he is a member.”
At the time this certificate was delivered to Woods it was provided in the fundamental laws then in force that a member who, after receiving a beneficiary certificate, should engage in certain prohibited vocations, including that of railway freight brakeman, should forfeit all insurance and benefits thereunder.
By subsequent legislation, the assured was given the privilege of engaging in the business of railway freight brakeman and of continuing his insurance by paying a prescribed amount in addition to the regular beneficiary rate specified in his certificate, but that a failure to pay said extra rate when so employed should deprive his beneficiary of any right to receive benefits as a result of his death from accident resulting from such hazardous occupation.
It is provided in the fifth subdivision of the articles of incorporation that the association shall have power to adopt a constitution, by-laws, rules and regulations for the government of the association, and may alter, modify or change such at will.
In the case of Fullenwider v. Royal League, 180 Ill. 621, an amendment of the by-laws increasing the assessment in force when the contract was entered into was upheld. It is there said: “It is apparent that the new by-law was adopted in the manner provided for in the laws of the society and was not an unreasonable enactment. It was enacted under a right to amend the by-laws reserved expressly in the contract, and hence it cannot be claimed it in any manner impaired any vested right. The contract requiring compliance with any by-laws that might be thereafter enacted, and the certificate being accepted with such a clause therein, there is no vested right of having the contract in the certificate remain unchanged, because the recognition of the
In Hughes v. Wis. Odd Fellows etc. Co., supra, the charter of a mutual life' insurance company empowered its directors to amend its by-laws and by an amendment it was provided that in case a member committed suicide his policy should not be paid. It rvas held that a member whose policy was issued prior to such amendment, who stated in his application that he would conform to the by-laws “now in force or which may hereafter be adopted” was bound by such amendment. Pinney, J., who delivered the opinion of the court, said: “We think that the insured might and did contract with the defendant company to be bound and affected, in reference to by-laws and regulations of future enactment, as fully and effectually as if such laws and regulations were existing at the time he became a member, and might consent that they should enter into and form parts of the contract, modifying or varying the rights of the parties. ’ ’
In the Fullenwider case, 73 Ill. App. 321, 336, the following language was used: “It will not be denied that the parties had -power to contract with reference to future by-laws, or change of by-laws, and if they did so contract there is no injustice in enforcing such future or changed by-laws against the parties. There is no limitation that such changes of bylaws shall not be made for the general good of the widows and orphans’ fund if it increases the burden of some or all of its members.”
All the above cases, and others that might be .cited, announce the same rule; and no case has been called to our attention that holds that, under a contract in terms recognizing the right of change in the laws of a mutual benefit society, it cannot, for the common good of all the members, enact legislation
It is manifest that the provisions for the creation of an equalization fund, and for the payment of the benefit assessment monthly in advance, thereby enabling the order to more promptly pay the claims for death losses were reasonable and for the benefit of the assured, as well as for the benefit of the entire membership, and that the association was fully authorized to enact such provisions.
Ever since the order provided for the creation of an equalization fund, the appellee, without objection, paid all assessments for that purpose, amounting in the aggregate to $3.90, and has also paid the monthly benefit assessment, without protest, to the amount of $2.20. Because of this, as well as for the reasons above given, the' appellee cannot now successfully claim that these' amounts were illegally exacted, or improperly applied, and that she is entitled to have the same applied in payment of the amount necessary to cover the extra hazardous risk.
Nor do' we agree with the trial court that the retention of the $1.30 paid on the 8th of December estopped the association from disputing its liability on the certificate under the circumstances. This amount was the regular assessment due from Woods as a benefit member if he had not been engaged in a hazardous vocation. The association was under no obligation, nor did it have the right, to apply it to any other purpose than that for which it was paid. It is unnecessary for us to consider the other questions presented and argued, since in our opinion the judgment must be reversed for the reasons given.
Reversed.
Chief Justice Gabbert and Mr. Justice Bailey concur.
