132 Tenn. 235 | Tenn. | 1915
delivered the opinion of the Court.
Herman Laue was a native of Germany, and there received his education. He became a resident of Memphis, in this State, in 1883, and there married in 1885, There he purchased a home and other real estate, reared a family, and his wife and sons have continuously resided in the city of Memphis, and now reside at the home pruchased by him and owned by them. He was a contractor and carpenter. In 1902 he became a member of a fraternal order known as the United Moderns. By that fraternity, on February, 7, 1902, a benefit certificate was issued to him for $1,000, payable to his wife, Clara Laue, the plaintiff in the present suit. In November, 1903, that fraternity and' the defendant in this suit consolidated, and the consolidated body retained the name of the “Grand Fraternity,” which order on November —, 1903, issued to Herman Laue a certificate (called a “rider”) by which his membership in the fraternity was admitted, and that fraternity assumed payment of all benefits provided for in the certificate which had been issued to him by the United Moderns.
The Grand Fraternity certificate above referred to was, however, surrendered for cancellation in 1907, when he made his application for the benefit certificate which forms a part of the contract on which the present suit is based. In 1908 he made a visit to Germany to see
Of the fact that Herman Laue was dead the defendant Fraternity was notified by a letter from Dr. Jacobson, collector of the Memphis Branch, No. 207, of that Fraternity. The letter was dated January 3, 1911, and on February 22, 1911, the attorney of Clara Laue, by letter of that date, requested the G-rand Fraternity to forward to him blank proofs of death, so that he might-make out the proper claim of the beneficiary in the certificate involved in this suit. In the same letter the Fraternity was advised that Herman Laue had died some time prior to the date of that letter. To the letter of the attorney the Grand Fraternity replied, under date of March 1, 1911, that Herman Laue was not a member of it at the time of his death, and that his certificate was therefore absolutely void. Under date of March 26, 1910', Dr. Jacobson, apparently acting as secretary of the Memphis Branch of the defendant fraternal order, No. 207, forwarded to the Grand Secretary of defendant order at Philadelphia a copy of the minutes of the meeting of the Memphis Branch, No. 207, which had been held on March 9, 1910. Through these minutes the grand secretary was advised that Herman Laue was then in Panama and interested in plantations there. In reply to the foregoing letter the grand secretary of the defendant order
‘ ‘ One tiling we note in the copy of the minutes which is important at this time and that is with reference to Prater Herman Lane being in Panama. This is ontside of the constitutional limits, and yon must not accept payments from him if he is living in that country. The constitution fixes the boundary at the northern boundary of Mexico, and any one residing south of that forfeits their certificate. You will find this restriction under article 9, section 2 of the constitution. Kindly be guided therebj^ in the case of Prater Laue. ’ ’
The section of the constitution referred to by the letter of the grand secretary recites, in substance, what was stated in an early part of this opinion as the two covenants made by Herman Laue under the insurance contract in suit as conditions and limitations on all death and liability benefits, and further provides that, if the “frater” or member shall have failed to keep said covenants:
“In each and every case, the frater, for himself and his beneficiary or beneficiaries, shall thereupon forfeit all right to any disability or death benefit from the Fraternity, and his benefit certificate shall be absolutely null and void. ’ ’
Upon the foregoing forfeiture clause the first defense of the Grand Fraternity was rested in the trial court, and in the court of civil appeals. A second defense is also urged for it, which is, in substance, that by
‘ ‘ On the 9th day of March, 1910, at a meeting of the-lodge in Memphis, plaintiff in open lodge' stated that her husband had purchased a large plantation in Panama, and the lodge received a communication from Panama tendering his resignation as recording sécre-tary of the Grand Fraternity at Memphis, stating' that he was unable to attend to the office, and that resignation was accepted, and thereupon, the information being conveyed to this defendant pursuant to its charter and by-laws, it declined to accept any dues from the member, and notified him. of. his • suspension, and he thereupon ceased to be a member entitled to any rights as a beneficiary by reason- of the- aforesaid removal to Panama.”
Passing now to a consideration of the first, defense,' it is apparent that its validity must depend upon a proper construction of the insurance contract. In his application for the benefit certificate involved- in this suit Herman Laue agreed in writing for himself and' his beneficiary to comply with, and be bound by, and under and subject to, the charter, constitution, by-laws,rules, and regulations of the Grand Fraternity then in force, and all lawful changes, alterations, or amendments to the same that might thereafter be adopted. Section 2 of article 9 of the constitution of 1908, which
“No benefit certificate shall be granted to any one residing' outside of that part of the North American continent lying- between the northern boundary of Mexico and the fifty-fifth parallel of north latitude. ’ ’
And by section 3 of article 10 it is provided that if a member shall have failed to make payment of beneficial dues, etc., or shall have removed from that part of the North American continent, etc., that in each and every such case, he shall for himself and his beneficiary forfeit all right to any disability or death benefit, etc., “all as hereinbefore more fully set out.”
The provisions of the constitution just above referred to must, of course, be construed in pari materia. The meaning- of the words “shall have removed,” in section 3, must be read in the light of the meaning of the words “any one residing,” in section 2. Manifestly, it was the purpose of section 2 to require that a benefit certificate should only be granted to a person residing in that part of the North American continent in that section described. The word “residing” implies a legal residence in the territory described, and not a mere transitory existence in that territory. The object of the Fraternity was that each holder of a benefit certificate should have a local habitation and abode in the territory described, to the end that it might be able to receive from him and others of his class permanent current revenue, and, such being the proper construction of section 2, it would seem to follow that the
It is reasonable to hold that the word “residence,” as used in section 2, was intended by the parties to have the same meaning as if the word ‘ ‘ domicile ’ ’ had been used in its stead. Speaking on the subject of domicile, it is said:
“We believe, however, that the rule is settled that every one must have a legal domicile somewhere, and that this legal domicile is not changed in law until a new one is acquired. We think the substance of our cases is that, in order to destroy the status of a party as the possessor of a domicile once acquired in this State, it must appear that he has removed into another State for the purpose of making it his home, and that his removal for purposes of business, though long continued, will not have the effect of changing his domicile, if he has the purpose of returning to this State upon the completion of the business.” Keelin v.*246 Graves, 129 Tenn. (2 Thompson), 103, 112, 165 S. W., 232, 235.
.See, also, Stratton v. Brigham, 2 Sneed (34 Tenn.), 420; Kellar v. Baird, 5 Heisk. (52 Tenn.), 39; Hascall v. Hafford, 107 Tenn. (23 Pick.), 355, 65 S. W., 423, 89 Am. St. Rep., 952; Fickle v. Fickle, 5 Yerg. (13 Tenn.), 203.
In Brown v. Beckwith, 58 W. Va., 140, 51 S. E., 977, 1 L. R. A. (N. S.), 778, 112 Am. St. Rep., 955, it is said:
“It is a legal maxim that every person mnst .have a domicile somewhere; and he can have but one at a time for the same purpose. From this, it follows that one cannot be lost or extinguished until another is acquired. . . . When one domicile is definitely abandoned and a new one selected and entered upon, length of time is not important. One day will be sufficient, provided the animus exists. ’ ’
And in a note to-the last case above it is said:
“The question when a person who intends to leave a State permanently, but has not yet done so, becomes a nonresident, has arisen mostly, if not wholly, in two classes of cases, those involving the right to exemptions, and those relating to the issuance of attachments. In the first-named class it has been held, in conformity with the rule that, to effect a change of residence, there must be both intention and act, that an intention to remove from the State at a future time will not defeat a claim to an exemption.” Springer*247 v. Lewis, 22 Pa., 191; Urquhart v. Smith, 5 Kan., 447; Winslow v. Benedict, 70 Ill., 120.
Where words are so used in the contract of insurance that their meaning is ambiguous or susceptible of two interpretations differing in import, that interpretation which will sustain the claim of the policy holder and cover the loss should he adopted. Life Ins. Co. v. Galbraith, 115 Tenn. (7 Cates), 471-483, 91 S. W., 204; Thompson v. Phenix, etc., Co., 136 U. S., 287, 10 Sup. Ct., 1019, 34 L. Ed., 408; National Bank v. Insurance Co., 95 U. S., 673, 24 L. Ed., 563; McNutt v. Va. Fire Ins. Co. (Ch. App.), 45 S. W., 61; Conn. Fire Ins. Co. v. Geary, 60 Neb., 338, 83 N. W., 78, 51 L. R. A., 698.
“It is an elementary principle that forfeitures are not favored in the law, and, in order to work a forfeiture of the rights of membership in a mutual association, it must clearly appear that such was the meaning of the contract, and the facts upon which a forfeiture is claimed must be proved by the most satisfactory evidence.” McCarthy v. Catholic Knights, 102 Tenn., 345, 353, 52 S. W., 142, 144, citing 3 Am. & Eng. Enc. L. (2d Ed.), 1086; Bates v. Detroit Mut. Ben. Ass’n, 51 Mich., 587, 17 N. W., 67; Jackson v. N. W. M. R. Ass’n, 78 Wis., 468, 47 N. W., 733; Benefit Soc. & Life Ins. (Bacon), sec. 198; Southern Life Ins. Co. v. Booker, 9 Heisk., 606, 24 Am. Rep., 344; Insurance Co. v. Morris, 3 Lea, 101, 31 Am. Rep., 631.
“ ‘It is a cardinal rule of construction that all instruments are to he expounded and to have effect given
It is a clear and undisputable fact on this record that Herman Laue never intended to remove his fixed place of residence or his domicile from the city of Memphis, which was within the favored territory, to Panama, the unfavored territory. His purpose in going into the unfavored territory was to gain temporary employment, and his absence from his fixed place of residence was intended to be temporary only. Eor the construction urged by the Fraternity it may be s.aid that the location of the domicile or residence of the family of assured during his two sojourns in Panama was of no concern to the insurer, and that its risk of loss was materially increased by the perils of the prohibited territory and the sojourn of Laue therein. But we answer, while the insurer might have stipu
We think there is no merit in the second defense above set out, for the reason that we have been wholly unable to discover in the constitution or by-laws of the Grand Fraternity any authority whatsoever vesting either the president of the Fraternity or its'grand secretary the power to suspend Laue from the benefits conferred upon him by his membership in the order, or to discontinue the acceptance of dues from him. The constitution, in article 1, sets out the purposes of the order. Section 2, article 1, provides:
“The Grand Fraternity shall be composed of a supreme governing and legislative body, known as the governing council; and 'an executive and administrative body, known as the board of directors; local organizations, known as branches; and such persons as obtain membership according to the constitution and by-laws of the Grand Fraternity. All members, irrespective of sex, shall be known and designated as*250 ‘fraters,’ and the words ‘he,’ ‘Mm,’ or ‘Ms’ wherever used shall be construed to apply to fraters of either sex. ’ ’
Article 1, section 3, relates to the corporate seal.
Article 2 and its sections 1 and 2 relate to the duties of the governing council, and in article 2 it is provided, referring to the general council: -
“It shall have power to charge, put upon trial, and try any officer or member of the Fraternity, and after trial, by a three-fifths vote of the members present, remove from office, expel from the Fraternity, or otherwise punish as it may adjudge, ’ ’ etc.
Therefore we hold that the power to expel Herman Laue from the Fraternity was vested by the constitution not in the grand secretary, and not in the president of the order, but in the governing'council of the order, and there is no evidence that the governing council of the order ever exercised its power of explusion against Herman Laue. The remedy of the Fraternity, however, if there had bhcn: conduct justifying a forfeiture of his certificate by its member Herman Laue, was not limited to expulsion of him from the order by the council. By section 16 of its by-laws all death and disability payments were declared to be expressly subject to the keeping by the member of sundry covenants therein set out, among which are the payment of dues and the nonrémoval of his residence from the favored territory, and by section 7 of the by-laws power was vested in the board of directors to cancel and annul any benefit certificate for any of the causes
The record, therefore, does not present a case of the explusion of a member under the laws of the order such as was before the court in Murray v. Supreme Hive L. O. M., 112 Tenn. (4 Cates), 665, 80 S. W., 827, where the court said the question was “whether the action of the order . . . was so inequitable and unreasonable that a court of equity will not countenance it, but will restore (the party) to her rights,” and that “the rule in such case is that the court will uphold the laws of the organization, and restrict its investigation to the inquiry as to whether such laws have been enforced fairly and without oppression”— citing, among other cases, Franta, etc., v. Union, 164 Mo., 304, 63 S. W., 1100, 54 L. R. A., 723, 86 Am. St. Rep., 611; Mazurkiewicz v. Soc., 127 Mich., 145, 86 N. W., 543, 54 L. R. A., 727; Pepin v. Société, 24 R. I., 550, 54 Atl., 47, 60 L. R. A., 626; Baxter v. McDonnell, 155 N. Y., 83, 49 N. E., 667, 40 L. R. A., 670.
The case at bar, on the contrary, falls within the first of the following principles: If a company wrongfully declares the policy forfeited and refuses to accept the premium when duly tendered, and to give the insured the customary receipt evidencing" the continued life of the policy, the assured has a choice of three courses: He may tender the premium and wait until the policy becomes'payable by its terms, and then try the question of forfeiture. Day v. Conn. Gen. Life Ins.
So we hold that Laue remained a member of the order notwithstanding the fact that the secretary instructed the collector of the local lodge to refuse acceptance of further premiums from him or his beneficiary. And his rights as a member of the Fraternity were kept alive, as the record shows, by repeated tenders at the due dates of his proper dues, made on his behalf by his wife, plaintiff in the present action.
Neither do we think there is any merit in the third defense set out above. We have quoted it as it appears in one of the pleas interposed by the defendant, but it is not sustained by the evidence in the transcript before us.
It results that the judgment of the court of civil appeals must be reversed, but we hold that the judgment recovered by the plaintiff in the circuit court should be credited by the amount of the proper dues which the Grand Fraternity should have received from Herman Laue prior to his death under the contract of insurance, and by-laws of the order, and to the end that the amount of such credit may be ascertained the cause