No. 21672 | Miss. | Mar 15, 1921
delivered the opinion of the court.
This is a suit to recover two thousand dollars life insur'ance on a benefit certificate issued by the appellant Sovereign Camp, Woodmen of the World, to one of its members, William H. Land, and payable to certain beneficiaries designated by the certificate and the constitution and bylaws of the order. The certificate was issued to Mr. Land in 1895 for the sum of one thousand dollars, but subsequently, in 1897, increased to two thousand dollars by
The deceased, Land, left no wife or children or other blood relation, except the appellee herein, Mrs. Sallie Miller, who is shown by the record to be a cousin and the nearest blood relation.
The appellee, Mrs. Miller, had no knowledge of the existence of the insurance certificate at the time of the death of her relative, Mr. Land, and it was not until 1920 she found out that the certificate of insurance existed, whereupon she demanded payment, and filed this suit to recover the amount then, five years and eight months after, the death of the insured. From a decree in her favor this appeal is prosecuted.
The chief contention of the appellant is that no recovery can be had by the appellee because the right to sue under the contract of insurance, as evidenced by the certificate and by-laws and constitution of the appellant order, is barred because the suit was not commenced within one year from the death of the insured, as provided by the constitution and laws of the order, which were a part of the insurance contract.
It is well to state here that at the time the first certificate was issued in 1895 there was not provision in the constitution or laws of the order which required that suits to recover the insurance must be commenced within one year after the death of the insured. However, the appellant order thereafter met biennially and enacted and adopted a new constitution and code of laws to govern the membership and the benefit insurance issued. -- These new constitutions and. code of laws adopted by the order every
It is argued by appellant that the constitution and laws in force at the time the second certificate of insurance was issued and the constitution and laws of the order adopted thereafter should govern the contract and be binding upon fhe beneficiary, according to the terms of the application and the insurance certificate. There can be no doubt of the correctness of this position, as held by this court several times. Newman v. S. L., K. of P., 110 Miss. 371" court="Miss." date_filed="1915-10-15" href="https://app.midpage.ai/document/newman-v-supreme-lodge-7992211?utm_source=webapp" opinion_id="7992211">110 Miss. 371, 70 So. 241, L. R. A. 1916C, 1051; Butler v. E. H. of C. W., 116 Miss. 85" court="Miss." date_filed="1917-10-15" href="https://app.midpage.ai/document/butler-v-eminent-household-of-columbian-woodmen-7993014?utm_source=webapp" opinion_id="7993014">116 Miss. 85, 76 So. 830, Ann. Cas. 1918D, 1137. So, if the provision limiting the time in which the suit must be brought is a valid stipulation, and is applicable to the appellee in this case, then the right to recover is barred.
In opposition to the position taken by the appellant, the appellee contends: First, that the stipulated limitation was not in force in 1895 when the certificate was first issued to the insured, and that when the provision was adopted in 1897 and biennially thereafter it was prospective and not retroactive in effect, and therefore had no application to the'contract made previously in 1895; second, that appellee is not barred, for the reason that the provision does not affect her rights because she had no knowledge of the existence of the certificate of insurance until five years and eight months after the death of the insured, her relative, and that she then promptly claimed the benefit insurance and filed suit within one year from the time she had knowledge of her rights; third, that the provision limiting the time to one year in which to commence the suit is void because it is contrary to the law of our state, section 3127, Code 1906 (section 2491, Heming
The appellant answers the latter contention of the ap-pellee with the argument that section 2575, Code of 1906, was enacted in 1906 and was not repealed until 1912, and it gave the appellant the right as, an insurance company to make the provision of limitation of action in its contracts of insurance; and, second, that when section 2575 was repealed in 1912, said section 3127, Code of 1906 • (section 2491, Hemingway’s Code), could have no retroactive effect upon the contract of insurance made prior to that time; that such retroactive application would be an impairment of contract and unconstitutional.
After a careful consideration of the decisive point involved, we think it unnecessary to determine the question as to whether the provision of limitation of action adopted by the appellant order in 1897 is prospective or retroactive, or both; nor do we believe it necessary to pass upon the question of whether or not the statute (section 3127, Code of 1906; Hemingway’s Code, section 2491) in effect was prospective or retroactive, or both, or that it applied only to the remedy before the right of action accrued and did not go to impair the substance of the contract; and we deem it unnecessary to decide the point as to whether the provision of limitation of action barred appellee from suit, since she had no knowledge of her rights under the certificate until 1920, when she commenced suit within the stipulated time.
But the contention of appellant that the appellee is barred by the one-year limitation must fail on the ground that the provision is void, because it is in conflict with said section 3127, Code of 1906 (section 2491, Hemingway’s Code).
The pathway to this conclusion is clear and unobstructed. The new constitution and code of laws of the appellant order adopted in 1913 superseded all previous constitutions and laws of the order. -Therefore, when the said constitution and laws of 1913 were adopted, section 2575,
The decree of the lower court is affirmed.
Affirmed.