Sovereign Camp Woodmen of the World v. Woodruff, 80 Miss. 546

Sovereign Camp Woodmen of the World v. Woodruff

80 Miss. 546 | Miss. | 1902

Terral, J.,

delivered the opinion of the court.

On the 16th day of June, 1898, J. 0. Woodruff, a member of the Woodmen of the World, received of the appellant fraternity a beneficial certificate in the sum of $3,000, payable at his death to his wife, and for the payment of $100 for placing a monument at his grave. The certificate does not specify to whom the $100 for the monument shall be paid, but sec. 69 of the constitution and laws of the sovereign camp provides that said $100 shall be paid to the contractor employed for the execution of said work. Sovereign Woodruff died January 10, 1900, in good standing in said order, with all fines, assessments, and charges against him duly paid. Mrs. Woodruff sued appellant for $100 for the monument fund, as well as for the $3,000, the life insurance, and, by a peremptory instruction, recovered said sums — $3,100.

Woodruff, in his application for insurance, was asked, “Have you been successfully vaccinated ?” to which he answered, *552“No.” (2) “If no, do you waive all claims under your certificate, should your death result from smallpox ?” Answer, “Yes.” And at the time of the death of Woodruff the constitution and laws of the order had been so amended as to substitute for the foregoing two questions the following: “Have you been successfully vaccinated ? If no, until you are, do you waive all claims under your certificate, should your death result from smallpox ?” Upon the trial of the case the attorneys representing appellant and appellee agreed in a statement, to be placed before the jury, that Woodruff had died January 10, 1900, in good standing with the fraternity, with all fees, fines, and assessments against him fully paid; and upon this, and the certificate of insurance, plaintiff rested her case. Thereupon appellant put upon the witness stand Dr. McCalip, who had certified to the fraternity that Woodruff died January 10, 1900, of smallpox; and he testified that in January he had gone to the home of Woodruff to see some members of his family Avho Avere sick with smallpox, and that he then found Woodruff sick with smallpox. But he testified further that he did not knoAV Avhether Woodruff was dead or not, and, of course, could not say that he died of smallpox. On cross-examination he stated that Woodruff, before the time he last saw him, had been successfully vaccinated. Appellant, upon the ground that it had been misled by the certificate of hlcOalip into the belief that Woodruff, to his knowledge, had died of smallpox, asked to withdraw the case from the jury, and to continue it until it could obtain the testimony of the physician who had attended Woodruff in his last illness, and by whom it averred it could prove that Woodruff actually died of smallpox. The court denied the application, and by a peremptory instruction the plaintiff beloAV recovered a verdict. Whether the assured, Woodruff, died of smallpox, should have been submitted to the jury, if he forfeited his certificate by so dying; but the contention of appellee is that as Woodruff had, previously to his attack of smallpox, been successfully vaccinated, she Avas *553entitled to recover, notwithstanding he so died. On the contrary, the appellant insists that the peremptory instruction was wrong, because there was evidence before -the jury supporting its contention that Woodruff died of smallpox; that the evidence that Woodruff had been successfully vaccinated was too slight for judicial cognizance, or at least insufficient to support a finding to that effect, or, if true, that it was of no value where death ensued from smallpox. The constitution and laws of a benefit -society are binding upon it, and upon all its members, and may be considered as written into contracts between it and its members; and all amendments or changes made in the constitution and laws of the order become at once the law • of the order and of its members, and take the place and stead of the laws amended or changed, and thereafter govern the-rights and liabilities of the order and of its members in relation to all contracts between them. Thornp. Bldg. Ass’ns, ch. 5, sec. 4; Bacon on Ben. Soc., sec. 304; Rose v. Wilkins. 78 Miss., 401 (29 So., 397). Woodruff, in his certificate of membership, obligates that he would be bound by the “conditions, constitution, and laws and such by-laws as are in force or may hereafter be enacted by the sovereign camp of which he is .a-member at the date of his decease,” and it is but a corollary that he should be entitled to all the benefits resulting therefrom. Indeed, we understand it to be a principle underlying all benefit societies, that their benefits and burdens should be common to all their members. ■ There are people opposed to vaccination, and who would rather incur the risk of smallpox to that arising from vaccination; and such persons, of 'course, could never obtain the benefit of successful vaccination, under the changed by-laws of the order. The society was well aware that a conviction of hazard from vaccination existed in many minds, and therefore provided that, until successfully vaccinated, death from smallpox should forfeit the insurance. But as the society has, by a change of its by-laws, provided against loss of the insurance by death from smallpox where the insured has been *554successfully vaccinated, and as Woodruff complied with the condition, we see every reason why he should receive the benefits of the order, as stipulated for by its by-laws and contract with appellee. This view seems to be the plain meaning of the contract of insurance, as interpreted by the laws of the order in force at the death of Woodruff. Dr. McCalip testified that, before taking smallpox, Woodruff had been successfully vaccinated. This testimony was not questioned by any further examination as to -that fact, nor was there any countervailing proof in respect to that point. The contention of appellant that “successful vaccination” means entire immunity from smallpox is, as we are inclined to believe, not sound. It is well known that many learned men of the medical profession believe . that inoculation with vaccine matter will prevent smallpox, or greatly mitigate its virulence, but we are not aware that there is a concurrence of medical opinion that vaccination is an absolute preventive of smallpox. We think it plainly inferable from the terms of the application for insurance in this case that the association did not use the phrase “successful vaccination” in the sense of an entire immunity from smallpox; for, if so, the change in the by-laws would be valueless. “Successful vaccination” carries the idea merely of the production upon the person vaccinated of such symptoms or manifestations as are usually produced by such operation when considered effective. The eruption produced by the inoculation, with its accompanying characteristics, is the only certain evidence that vaccination has taken, or is successful. That “successful vaccination” only means that the virus has taken upon the person inoculated, is supported by the Century Dictionary (word “Vaccination”). Though Woodruff died of smallpox, that was no bar to his recovery, if he had been successfully vaccinated; and that he had been so vaccinated was fully proven, without suggestion that the fact was otherwise. The offer of appellant was to show that he died of smallpox, and that, under all the evidence in the case, was immaterial.

*555The plaintiff, however, had no right to recover the $100 provided in the by-laws for the erection of a monument at the grave of Woodruff, and, unless that sum be remitted, the judgment will be reversed; if remitted, affirmed.

Affirmed on remittitur.