Richmond v. Supreme Lodge Order of Mutual Protection

100 Mo. App. 8 | Mo. Ct. App. | 1903

BLAND, P. J.

1. By the third clause of his- motion filed the third day of May, appellant sought to bring before this court for review, the order of the court making Augusta Delano a party to the suit and ordering her and plaintiff to interplead for the fund. The order to interplead was made April 21st. In his first motion for a new trial, filed April 24th, the error in making the order to interplead (if error it was) was not called to the attention of the- court. The motion for new trial filed on May 3d, by which the attention of the court was first called to the alleged error in making the order to interplead, comes too late: hence, the propriety of the order is not before us for review. State ex rel. v. Farmers’ & Merchants’ Nat. Bank, 144 Mo. 381; Bank v. Bennett, 138 Mo. loc. cit. 500; Brown v. Mays, 80 Mo. App. (K. C.) 81. There is nothing before the court for review except the amount found to be due by' the court on the certificate of insurance and the propriety of the allowance of a fee of one hundred dollars to respondent’s attorney.

2. The certificate of insurance provides that upon the death of the insured the association will, pay to the beneficiary the amount of one assessment, not exceeding two thousand dollars if the insured as a member has complied with the charter, constitution, rules and regulations of the order. The concluding clause of the certificate is as follows:

‘ ‘ The express condition upon which this certificate is issued is that the rights of the above named beneficiary or beneficiaries shall be determined by the charter, constitution, laws, rules and regulations of the order in force at the time that the sum due- hereunder is payable. ’ ’

Section 164, adopted after the certificate of insurance has been issued, provides, in substance, that a sum equal to one-fourth of the amount of his certificate shall be paid by the member in assessments; that if he should die before paying said amount, the deficit will be deducted from the face value of the policy and be credited to the widows’ and orphans’ protection fund. In other words, to entitle a beneficiary to the face value of the certificate of insurance, the insured must have paid to the order in assessments a sum equal to one-fourth of the face value of the certificate. This by-law makes a material change in the terms of the certificate as issued, and the change is to the detriment of the beneficiary.

The question presented by the appeal is, was it within the power of the association to make this change without the express consent of the insured, of ydiich there is no evidence? The constitution and by-laws of a mutual benefit association constitute a part of the contract of insurance with its members and must be read into their certificates in order to see all the terms and conditions of the contract. Slater v. Supreme Lodge K. and L. H., 76 Mo. App. (St. L.) 387; Laker v. Royal Fraternal Union, 95 Mo. App. (St. L.) 353. Neither the insured nor the beneficiary have a vested interest in a certificate of insurance issued by a mutual benefit association during the lifetime of the insured. There being no vested interest in any one in the certificate, it was competent for the association and the insured to contract in advance that the terms of the contract might be changed as to the amount to become due by a by-law to be passed in the future. The certificate sued on expressly provides that such a change might be made. Section 164 is not harsh or unreasonable; it is in harmony with the benevolent purpose for which the association was formed and was adopted, presumably,' to more fully effectuate the benign purpose of the order, and should be upheld by the courts, as it violated no contractual relation between the assured and the beneficiary and is for the benefit of the order. State ex rel. v. Grand Lodge A. O. U. W., 78 Mo. App. (K. C.) 546; Brower v. Supreme Lodge Nat. Reserve Assn., 74 Mo. App. (K. C.) 490.

3. 'No question was raised by the appellant as to the right of the court to allow an attorney’s fee in a case like this, nor is the fee allowed Andrew Mackay, Jr., attorney.for respondent, claimed to be unreasonable.

Discovering no reversible error in the record, the judgment is affirmed.

All concur; Goode, J., on the ground that the order for an interpleading was rightly made.