122 Mo. App. 547 | Mo. Ct. App. | 1907
(after stating the facts). — There being no allegation in the answer that one assessment on the membership was insufficient to render the maximum amount of $2,000 mentioned in the certificate, this feature of the contract is eliminated from consideration, and it therefore follows that Charles. Lewine, the insured member, having committed suicide, these plaintiffs, beneficiaries, are entitled to receive either the maximum amount of $2,000 mentioned in the certificate, or the lesser amount provided for in the subsequent by-law on the subject of suicide. This lesser amount is averred to be $853.15. The record therefore presents but one question calling for the opinion of the court, and that is, can the original contract of insurance and the indemnity therein provided be thus modified by the adoption and retrospective operation of a subsequent by-law on suicide, without the express assent of the insured member, or did he consent to such modification • by the language employed in his contract of membership and insurance? The learned counsel for appellant point us to the language of his application wherein he agreed that he would “be governed” and his contract should “be controlled” by all laws, etc., then in force or which might thereafter be enacted or submit to the penalties therein contained, and argue that this agreement on his part is parcel of the consideration upon which the certificate was issued to him, wherein, by his acceptance, he agreed to “a full compliance with all thelawsgoverningtherank then in force or that might thereafter be enacted,” and it is insisted that from this it is manifest Charles Lewine agreed in advance that his contract might be thus modified and altered. Our attention in this connection is especially invited to numerous decisions of the Supreme and Appellate Courts of Illinois where, in suits against this identical defendant, on the identical language here involved, the member was held to have agreed in advance to the future material modification of his insur
“All of the authorities agree that the rights of the members of benefit societies in the sums agreed to be paid at death is simply the power to appoint the beneficiary and that the constitution, or charter, and the by-laws are the foundation and source of such power. The cases must not, however, be understood to hold that theAnember of a benefit society has not a property right in the contract of membership', under which he has power to designate a recipient of the benefit to be paid, because of such membership and under the contract. The right of the member in this contract is a valuable one, which the courts will at all times recognize and protect, although strictly speaking, such member has no property interest in the benefit paid, or subject of the power. The membership, which includes the right to pay the agreed consideration and to appoint a person to take the benefit, must be regarded as a species of property and is to be distinguished from the benefit, or sum to be paid, itself in which the member has no property. This principle has been clearly recognized in later cases.”
Having thus ascertained that the contract involved is one for insurance in which the member has vested rights, it then becomes important to ascertain whether
In support of this conclusion it is well to' notice the question from principle, therefore let us examine the matter precisely as it is presented. In so doing, we first determine precisely what the society seeks in these cases, and that is, the society seeks a forfeiture of the member’s rights and repudiation of part of all of the insurance contract on the ground that the member has failed to abide by or comply with or conform to a future law by which it maintains he has agreed in advance to he bound; or in other words, he has violated a subsequent law which it is alleged he has agreed in advance shall determine his rights, and the case viewed from this standpoint, renders it manifest that the judgment of the court must be influenced and controlled by that principle which governs and controls adjudications in common-law tribunals always when vested rights are sought to be forfeited. Now, there is a principle which is always pertinent where forfeitures are sought, and it is the rule that forfeitures are not favored in the .law, and in order to work a forfeiture, it must clearly appear, first, that such was the result the party against whose rights the forfeiture is sought to be invoked, had in contemplation and intended when entering into the contract (3 Am. and Eng. Ency. Law [2 Ed.], 1086; Elliott v. Grand Lodge, 2 Kan. App. 430; Medical, etc., Soc. v. Weatherby, 75 Ala. 248; Schrick v. Gegenseitiger, etc., Fond, 44 Wis. 369; Ballon v. Gill, 50 Wis. 614; Miner v. Mich. Ben. Assn., 63 Mich. 338; Wiggin v. K. of P., 31 Fed. 122); and, second, when a forfeiture is sought on a doubtful provision, the language must be construed strictly against the insurer and in favor of the insured; or, in other words, in such doubtful cases, the doubt shall be resolved in aid of the contract and so as to avoid.
The subsequent law in this case, by its provisions, applies to members heretofore or hereafter admitted to the order. This retrospective language cannot aid the case for the defendant, for to give the law such retro>spective operation in this case and thus modify the essential indemnity feature of the contract, under the language of the agreement found in the application and certificate, would be unreasonable indeed. What has been said applies of course only to the retrospective operation of such laws, for we know of no good reason why such a lav/ should not have a valid and binding prospective operation on such contracts as are made after its enactment of which it, of course, becomes parcel.
In conclusion, we beg to suggest, does it appear reasonable that Charles Levine, when agreeing that his contract should be controlled by subsequent laws, then had in mind, contemplated and intended that the society might, under this agreement, exercise the right to- repudiate either a part or all of the insurance contract in event he committed suicide, thus destroying what he and every other prudent man, exercising his ordinary senses would deem to be secure thereby? We think not. We feel doubly assured of the soundness of the doctrine of this court when we note the opinion of such learned and eminent jurists to the same effect as the lamented
Now it seems that in tbe case of Morton y. Royal Tribe of Joseph, 93 Mo. App. 78, tbe real matter pressed upon tbe court for decision was whether or not tbe order was a fraternal beneficial association and as sucb, exempt from tbe general insurance laws of tbe State. Tbe validity of tbe suicide law involved seems not to have been brought forward with much vigor at tbe argument and was therefore not dwelt upon in tbe opinion. So much of that case as bears a construction contrary to tbe views herein expressed, should be disapproved.
Finding no reversible error in the judgment of tbe circuit court, it will be affirmed. It is so ordered.