159 Ga. 390 | Ga. | 1924
Tlie Court of Appeals certified the following questions to the Supreme Court: “1. Where one who has been a member of a nonresident incorporated beneficial order having an office and agent in this State seeks the recovery of money paid by him in obtaining and continuing in force a certificate in the nature of a contract of life insurance, on account of the alleged repudiation of such contract; and where the order, at the time of the issuance of the certificate and subsequently, had and has a mutual benefit department, or insurance feature, through and by which it insures -the lives of only the members of the order, no person not such a member in good standing being able to obtain, carry, have, or receive benefits of the insurance feature of the order; and where at the time he became a member of the order he obtained a ‘certificate of membership’ in the mutual benefit department of the order, under which, on his compliance with stated conditions, a specified' sum would be paid to his wife upon his death, and where he complied with all the legal rules and regulations of the order and of the mutual benefit department by the payment to it of all membership fees and of every assessment made and levied against his -certificate of membership, and complied with all other rules and regulations of the order and the mutual benefit department; and where, without just cause or legal warrant or authority, the order expelled him from the order, discontinuing his membership therein, and by so doing canceled his certificate of membership in the order and the mutual benefit department, without his consent or approval and over his objections, and thus annuled and repudiated the contract; and where, because of the said repudiation, he seeks to recover all premiums, dues, and assessments that he paid in obtaining and maintaining the certificate, and where the ‘certificate of membership’ in the nature of a contract of insurance is headed, ‘Mutual Benefit Department of’ the said order, the name of the order therein appearing, and the certificate refers to his application for membership ‘in the Mutual Benefit Department of’ said order (the name
Under the facts stated in the question, the order itself is a necessary party. The question states that the order expelled Clark from tlje order, discontinuing his membership therein, and by so doing .canceled his certificate of membership in the order and the mutual benefit department. The question nowhere indicates that the “Mutual Benefit Department” is a separate entity, capable of suing and being -sued. Consequently we can not say that the suit should be against said benefit department, or that said department is a proper party to be joined in the suit as a defendant.
“2. Where a person duly became a member of an incorporated beneficial order, and obtained and continued by virtue thereof a ‘certificate of membership’ in the nature of a contract of life insurance, under conditions and circumstances such as stated in the preceding question, and, where in the contract it was ‘distinctly declared,, covenanted, and agreed that this certificate is but evidence of membership in the said Mutual Benefit Department, and that it in no sense and at no time promises or agrees to anything that is not dependent at all times upon the laws of the said Mutual Benefit Department’ of said order ‘as they may be legally adopted from time to time,’ that ‘the laws of said Mutual Benefit Department, subject to such changes as may be legally made therein, are the basis for and form a part of the contract witnessed by this certificate,’ and that ‘any failure on the part of the insured, or any ■ agent appointed by him, to comply with all the requirements of said
We answer: Yes. Alabama Gold Life Insurance Co. v. Garmany, 74 Ga. 51 (2). Where the order has repudiated the contract of insurance, the rights of the member are not to be measured by the terms of the contract. Supreme Council v. Jordan, 117 Ga. 808, 813 (45 S. E. 33); Timmerman v. Stanley, 123 Ga. 850 (51 S. E. 760, 1 L. R. A. (N. S.) 379).
“3. Where a member of an incorporated beneficial order has been expelled therefrom, and his membership has been discontinued, and he seeks to recover from the order dues,-assessments, and other moneys paid by him for obtaining and continuing of force his certificate of membership in the nature of a contract of life insurance, under conditions and circumstances such as set forth in questions 1 and 2 preceding, must he, as a condition precedent to his right to a refund of such dues, assessments, and other moneys, if he be otherwise entitled thereto, first exhaust his remedies in seeking reinstatement and other relief within the organization of the order itself? Would it be necessary for a petition seeking such a recovery of moneys to show that the member has first exhausted such remedies, in the absence of any allegation of a reason for his failure to do so?”
Where a member of an incorporated beneficial order was “without just Cause er legal warrant or authority” expelled, as stated in the question,
“4. Where an incorporated beneficial order has expelled a member therefrom by its vote and action, but without just cause or legal warrant or authority, and has discontinued his membership therein, thus canceling and repudiating his certificate of membership in the nature of a contract of life insurance, without his consent and over his objections, under conditions and circumstances such as are stated in questions 1 and 2 preceding, is such action by the order final and conclusive, so as to preclude a review by a court of law of the conduct and acts of the order, upon action by the member seeking merely the recovery of dues, assessments, and other moneys paid by him during his membership for the purpose of obtaining and continuing of force his certificate in the nature of a contract of life insurance?”
Under the facts stated, the action of the order was not .final and conclusive and does not preclude an action at law in the courts by the member seeking merely the recovery of its assessments and other moneys paid by him during his membership.