22 Colo. App. 409 | Colo. Ct. App. | 1912
delivered the opinion of the court.
Plaintiffs brought their suit to recover from The Modern Brotherhood of America, a corporation organized and existing under and by virtue
The ease was submitted for determination upon a stipulation in writing which, among other things, contained the following.: “That except for the fact that said William B. Lock committed suicide, the plaintiffs in this action would be entitled to recover the sum of two thousand dollars at and of the date of the commencement of this suit; that proof of loss was duly made by the beneficiaries herein named, and the payment of any sum herein was refused by the defendant association upon the sole ground that because William B. Lock, had committed suicide the certificate was forfeited, and there was no liability on the part of the defendant association to pay the beneficiaries therein named any sum whatever. * * *' It is therefore mutually agreed between the parties that this cause shall be submitted
Appellant contends (a) that it was not a life insurance company; (b) that the certificate of membership sued upon was not a life insurance policy, nor the member a policy holder; (c) that the act of April 11th, 1903, providing that thereafter the suicide of a policy holder of any life insurance company doing business in this state, shall not he a defense against the payment of a life insurance policy, did not apply to the defendant, a fraternal bene-' ficiary association; (d) that if such act was applicable to the defendant, it was unconstitutional and void; (e) that the said act of 1903 was repealed by section 73, chapter 193, session laws of 1907, and therefore its provisions were of no force or effect to bar the defense of suicide.
By the decision of the supreme court in Head Camp Woodmen of the World et al. v. Sloss, 49 Colo., 177, following and approving decisions of the same court in Chartrand et al. v. Brace, 16 Colo., 19, and Supreme Lodge, Knights of Honor, v. Davis, 26 Colo., 252, 257, it has become settled law in this state that as regards the insurance feature, the defendant company' was an insurance company, and
The act of 1903 was a separate, independent and complete enactment in and Of itself, and in no sense amendatory of any previous legislative enactment (Woodmen v. Sloss, supra), the language thereof being as follows: ‘ ‘ From and after the passage of this act the suicide of a policy holder of any life insurance company doing business in this state shall not be a defense against the payment of a life insurance policy, whether said suicide was voluntary or involuntary, and whether said policy holder was sane or insane.” — Session Laws 1903, p. 257.
The general assembly of 1907 revised, amplified and codified the insurance laws by chapter 193, session laws of that year. By section 74, clause
The object of the statute and.the legislative intent, as tersely expressed by the late Mr. Justice Harlan, in the Whitfield case, supra, was to “cut up by the roots” any defense grounded upon the fact
Nor do we agree with counsel for appellant that the act of 1907 is to be taken as a legislative construction of the act of 1903, different from the construction placed thereon by the supreme court, and therefore to be accepted by the courts as the law; but rather, as a recognition of the law as interpreted and applied in the Chartrand and Knights of Honor cases as of practically universal application to insurance contracts, and a positive enactment limiting its prohibitive features thereafter to insurance companies other than those named in section 73 of the insurance code.
That the subsequent repeal of a statute, the provisions of which have become a constituent part of a contract such as this, will not be construed as retrospective in its operation, unless its terms clearly show a legislative intention that it should so operate, is so well settled as to have become elementary; and it is equally certain that in this state, and in others having like constitutional provisions, such statute, if it attempted to destroy the protective provisions of a former statute, would be in contravention of the constitution of the state, as well as of the provisions of the federal constitution which prohibit the states from passing any law impairing the obligation of contracts. — Gilliland et al. v. Phillips et al., 1 S. C., 152, 154. Robinson v. Barrows,
The repeal of the prohibitive statute cannot make valid, or breathe vitality into, a contract that was' void when made because in violation of the statute. — Gilliland et al. v. Phillips et al., supra. Ludlow v. Hardy, supra. Nor can the statutory inhibition be waived, or abrogated by agreement of the parties made prior to or contemporaneous with the contract of insurance. — Head Camp Woodmen of the World et al. v. Sloss, supra. Whitfield v. Aetna Life Ins. Co., supra.
From what has been said it necessarily follows that the judgment of the trial court was right and must be affirmed, and it is therefore unnecessary to consider in this opinion the question so ably and exhaustively presented in the briefs of counsel as to the appellant’s having, by the pleadings and stipulated facts, shown itself to be within the class of associations exempted by sections 1 and 73 referred' to. Our conclusion must be understood-as applicable only to insurance contracts entered into prior to the taking effect of the insurance code. The judgment is affirmed.
Cunningham, J., not participating.