Jaeger v. Grand Lodge of Wisconsin of the Order of Hermann's Sons, 149 Wis. 354

149 Wis. 354 | Wis. | 1912

KeewiN, J.

The facts in this case as found by the court are undisputed. They appear in tbe foregoing statement of the case.

Error is assigned upon the conclusions of law. We are reminded by the learned counsel for appellant of the great importance of the principles involved in this case to fraternal societies generally, and we approach the consideration of the-case fully conscious of the fact that the legal principles involved are far reaching in their importance to all fraternal associations.

The deceased, Claus J aeger, became a member of the lodge in 1879 and continued to 1888, when under a new arrangement the certificate under consideration was issued, by the terms of which the defendant promised to pay $1,000 to the beneficiaries provided for upon the death of said Claus J aeger, and the said Claus Jaeger, by the terms of said certificate, promised to “comply with the laws, rules and regulations now governing this order and its beneficiary fund, and with all such as may hereafter be enacted to govern said order and fund.” The deceased paid all dues and complied with all rules, regulations, and by-laws except that he refused to agree to the $100 deduction from the face of his policy by the bylaw of 1897, and also refused to comply with another by-law, passed in 1909, giving two options, one to pay a sum in gross-to be ascertained by advancing Ms payments from the time he entered from $1.60 per month to $2.75 per month, and charging the difference upon the policy or certificate, or by deducting such amount from the face of the policy when paid, as more fully appears from the statement of facts. The effect of this by-law, as will be seen by examination of the facts found, was to scale down the certificate or policy by charging up from the time the deceased obtained his certificate in 1888 a sum aggregating $363.93, together with $100 ordered deducted by the first by-law above referred to, making a total cut from the face of the certificate of $463.93. But, as found by the court below on sufficient evidence, the deceased consented at the time of change of beneficiaries to the $100 cut, therefore the plaintiffs cannot complain on that account.

The main question, therefore, for determination is'whether the defendant could charge the $363.93 against the certificate in suit. The court below held that it could not, and that such •amount was due to plaintiffs in addition to the $536.07 tendered by defendant. The case turns upon the power of the defendant to pass the by-law under wMch it claims the right to impose the burden upon its members. It will be remembered that the burden imposed upon deceased and his certificate or policy is a charge of $2.75 per month from the time of the issuance of the certificate up to 1909, less the amount which he had paid during that time after deceased had paid the regular dues imposed by the defendant up to that time, namely, $1.60 per month. The effect of the by-law is to take, as we have seen, $363.93 out of the $900 due on the policy by a retroactive cut after deceased had paid the dues imposed and complied with all the rules and regulations of the defendant from the time of issuance of the certificate until 1909, a period of over twenty years. The appellant’s claim is that the provision in the certificate to the effect that the deceased will comply with all by-laws then existing or which may be subsequently passed gives such right, and several authorities are cited which it is claimed support the contention. We shall briefly refer to those chiefly relied upon by appellant.

Borgards v. Farmers’ Mut. Ins. Co. 79 Mich. 440, 44 N. W. 856, was a case limiting liability in the future in case of loss by sparks escaping from a steam engine used in threshing grain.

Sargeant v. Supreme Lodge, 158 Mass. 557, 33 N. E. 650, has reference to change of beneficiaries.

Stohr v. San Francisco M. F. Soc. 82 Cal. 557, 22 Pac. 1125, held that a by-law passed limiting benefits after continuous payments for six months was valid. The by-law clearly related to future benefits and referred to a matter over which the company had control and power to limit payments by bylaw, and in no way violated any contract relations between the parties, because permission to do what was done and change the by-law in that regard was a part of the contract, and it was said in the case that' the change could not he retroactive. The contract was held to mean that in case of sickness the member is to receive payments, subject to the power of defendant to change the provision authorizing such payments so far as future payments, are concerned.

Parish v. New York P. Exch. 169 N. Y. 34, 61 N. E. 977, holds that a by-law diverting a fund from the purpose specified in the charter is unreasonable and void, because an attempt to divert the fund to a different purpose after the fund had been accumulated by payments for a series of years. The case is not' in favor of appellant’s position, but rather against it.

Supreme Commandery v. Ainsworth, 71 Ala. 436, holds certificate to be a contract not subject to impairment, but accepted subject to the laws of the order then in force or thereafter enacted, but was silent on the question of suicide; and it was further held that a by-law enacted after the issuance of certificate, declaring it void if the member should take his own life, was valid.

Caldwell v. Grand Lodge, 148 Cal. 195, 82 Pac. 781, relates to change of beneficiaries, and it was held that where the original by-law allowed any person to be named by a member as beneficiary, a change in the by-laws requiring one to be designated as a member of the family or related by blood, or “who shall be dependent upon him,” is reasonable.

Supreme Lodge v. Kutscher, 179 Ill. 340, 53 N. E. 620, is a case holding that a by-law forfeiting claim for the death of a member by suicide or intoxication is reasonable and binding upon a member joining before its passage who contracts to be bound by subsequent by-laws.

Fullenwider v. Supreme Council, 180 Ill. 621, 54 N. E. 485, involves right to change rate of assessment by subsequent by-law. It does not appear, as we understand the opinion, that the subsequent by-law had any retroactive effect; moreover the case is ruled by a bare majority, three judges dissenting.

Olson v. Court of Honor, 100 Minn. 117, 110 N. W. 374, is where a by-law passed subsequently to the issuance of certificate limiting the benefit, in case of suicide, to five per cent, of the face of the certificate for each year during continuance of membership in the society, was held unreasonable and void as to existing members. This authority is against appellant’s contention.

Counsel for appellant also cites the following Wisconsin cases: Schmidt v. Supreme Tent, 97 Wis. 528, 73 N. W. 22, which is a case where the subsequent by-law was against prohibited occupation. Hughes v. Wis. O. F. Mut. L. Ins. Co. 98 Wis. 292, 73 N. W. 1015, is where there was a subsequent by-law against suicide, rendering the policy void. Loeffler v. Modern Woodmen, 100 Wis. 79, 75 N. W. 1012, is where there was a by-law against entering into a prohibited business. Thomas v Covert, 126 Wis. 593, 105 N. W. 922, seems to be against appellant’s contention, because it recognizes the rule that an agreement or certificate similar to the one in question must in terms or by implication authorize tbe change in the contract, otherwise the subsequent by-law effecting such change is void.

A careful examination of the foregoing cases will show that they are not controlling in favor of the appellant and some of them are against appellant’s contention. The case of Wuerfler v. Trustees Grand Grove, 116 Wis. 19, 92 N. W. 433, rules the instant case. That case is so strongly in point both on facts and upon principles enunciated that we quote at length from the opinion. At page 26 the court said:

“Respondent did not possess unlimited authority to change its plan of insurance, giving the change retroactive effect, under the reserve power, made a part of the insurance contract, to make changes in the rules, by-laws, and regulations of the order. Such a reserve power is held to warrant only reasonable variances of insurance contracts, — variances required, in the judgment of the order, in those matters of detail necessary or advisable in carrying out efficiently the fundamental principle or scheme of insurance, not changes destroying it. Obviously, changes in the by-laws, rules, and regulations regarding the execution of a plan of insurance are quite different from changing the plan itself and nullifying all contracts entered into under it, as was done in this case. The essential features of the plan of insurance here were that each certificate holder’s beneficiary should receive $1,000 upon and at the maturity of his contract, and that a fund should be accumulated by assessments upon the membership in the order sufficient for that purpose. The way was undoubtedly open for the order to make reasonable changes respecting the hazards members might subject themselves to, and in regard to the number and amount of the assessments, the time of payment thereof, the effect of default in such payment, the notice required of assessments to put members in default, and many other matters of detail that might be mentioned. But after a member had paid assessments for a long period of time, contributing to accumulate money to meet the matured obligations of $1,000 each to beneficiaries, a change in the constitution of the order (the word ‘constitution’ is here used as synonymous with ‘by-laws’) rendering the certificate at maturity, instead of worth $1,000, worth an indefinite amount and probably not half that sum, cannot seriously be considered a reasonable change in rules, regulations and by-laws as regards existing contracts.”

This court has held that where there is a conflict between the policy and the laws of the order, the policy controls. Ledebuhr v. Wis. T. Co. 112 Wis. 657, 88 N. W. 607; Bruger v. Princeton & St. M. Mut. F. Ins. Co. 129 Wis. 281, 109 N. W. 95.

The change attempted to be made here by deducting $363.93 from the policy amounted to an abrogation of the contract. In Langan v. Supreme Court, 174 N. Y. 266, 66 N. E. 932, the benefit certificate had been issued for $5,000 on the death of plaintiff. After plaintiff had become a member, the by-laws were amended so that on the death of plaintiff only $2,000 should be paid. In an action involving the validity of such amendment the court said:

“The action of the defendant, in the attempted amendment of the by-law, which1 was in force when the plaintiff joined the association and received his certificate, was wholly ineffectual to deprive him of any rights which had become vested. It was beyond the power of the defendant to affect the obligation expressed in the certificate, without the consent of its holder.”

To the same effect are Beach v. Supreme Tent, 177 N. Y. 100, 69 N. E. 281; Weber v. Supreme Tent, 172 N. Y. 490, 65 N. E. 258; Hale v. Equitable Aid Union, 168 Pa. St. 377, 31 Atl. 1066.

In Newhall v. Supreme Council 181 Mass. 111 63 N. E. 1, an attempt was made, by the adoption of a subsequent bylaw, to cut the amount of the certificate from $5,000 to $2,000, and, although the usual promise was contained in the certificate to comply with subsequent by-laws, it was held that the full sum mentioned in the certificate, $5,000, could be recovered. See, also, Gaut v. Supreme Council, 107 Tenn. 603, 64 S. W. 1070, 55 L. R. A. 465, where it was held that an agreement by tbe bolder of a benefit certificate to be governed by laws subsequently enacted does not authorize tbe reduction of tbe benefit called for in tbe certificate after payment bas been made for years on original value.

We are of opinion that tbe by-law mating tbe rebate from tbe policy of $363.93 was unauthorized and void. Tbe bylaw making tbe ten per cent, cut, or $100 on tbe $1,000 certificate, was assented to by deceased when be made tbe change of beneficiaries and cannot be questioned here.

Some other questions are raised by respondents which they claim are sufficient to defeat tbe appellant, on tbe ground that tbe by-laws referred to are unreasonable because all members, new and old, were not put upon tbe same basis as to rates. On this point attention is called to tbe following authorities in addition to those already cited: Strauss v. Mutual R. F. L. Asso. 126 N. C. 971, 36 S. E. 352, 54 L. R. A. 605; Benjamin v. Mutual R. F. L. Asso. 146 Cal. 34, 79 Pac. 517; Ebert v. Mutual R. F. L. Asso. 81 Minn. 116, 83 N. W. 506, 834, 84 N. W. 857. Whether this last contention as to discrimination between old and new members as to rates in the future is sufficient to defeat the by-law making new rates, independent of the retroactive cut on' old members, we need not and do not decide, because the by-law scaling down the certificate by a rebate of $363.93 cannot be upheld, and the by-law attempting to accomplish such purpose is unauthorized under the contract and void. The judgment of the court below, therefore, is right and must be affirmed.

By the Court. — The judgment is affirmed.