Opinion
No. 32886.
November 15, 1937. Suggestion of Error Overruled December 13, 1937.
1. INSURANCE.
Where charter of fraternal society limited its membership and insurance to those not over 60 years of age, and constitution made further limitation to those not more than 55 years of age, certificate of member, if member was over 60 at time of application, was ultra vires and void, but, if member was between 55 and 60 and society knew that fact but accepted premiums, contract would be valid because of waiver.
2. INSURANCE.
Any waiver of constitutional limits as to age of those applying for membership and insurance in fraternal society must have been made by such agent of society as had power to make waiver and not by mere local financial agent.
3. INSURANCE.
That fraternal society retained all premiums paid by member for five years after death of member, if a waiver by society of defense that insured at time of application was older than was permissible under charter and constitution of society, did not impose liability on society, where certificate had lapsed about three months before death of member for failure to pay monthly premiums.
APPEAL from the chancery court of Sunflower county. HON. J.L. WILLIAMS, Chancellor.
Campbell Campbell, of Yazoo City, for appellant.
The appellant was not liable under the contract for the payment of any amount to the beneficiary because of the lapse of said contract by reason of delinquency in payments of assessments and dues.
The complainant alleged in her amended bill that she had no information as to what payments had been made by Millie Rush under the contract, or as to the dates of such payments, alleging that information to be in the exclusive possession and knowledge of the defendant and praying a full and complete discovery from the defendant as to the amounts and dates of such payments. To this amended bill, the defendant answered fully, giving as an Exhibit E thereto a full and completely itemized statement, sworn to by its secretary and treasurer, of all payments and the date of same. This answer to the discovery prayed, showed that the deceased Millie Rush had paid, under her contract, all payments required of her except those payments due for the months of February, March, April, and May, 1931, she dying on May 8, 1931. Her delinquency for those months would and did, under the terms of her certificate, and the charter, constitution, and application to the Afro-American Sons Daughters, render her contract lapsed and null and void and of no effect. Consequently, if the complainant is conclusively bound by the answer to the discovery prayed the action of the lower court was clearly erroneous in permitting appellee to introduce proof of payment of premiums, and its decree should be reversed and judgment rendered for the appellant.
Fox v. Fisk, 6 How. 328; Massingill v. Carraway, 13 S. M. 324; 1 A.L.R. 100-101; Robinson v. Francis, 7 How. 458.
That the allegations in the amended bill were material in that, by alleging the information regarding the contract and payments to be in the exclusive possession and knowledge of defendant, jurisdiction was obtained in equity, is all very clearly seen. No denial was made that such was not the case, and appellee was bound by such allegations, pleadings being construed most strongly against the pleader.
City of Natchez v. Minor, 9 S. M. 544, 48 Am. Dec. 727; Strong v. Paret, 1 Miss. 283; Nestor v. Davis, 56 So. 347, 100 Miss. 199; Odom v. G. S.I.R.R. Co., 57 So. 626, 101 Miss. 642; I.C.R. Co. v. Middleton, 68 So. 146, 109 Miss. 199; Co-Op. Oil Co. v. Greenwood Co., 114 So. 397, 148 Miss. 536; Merchants Mfg. Bank v. Busby, 160 So. 577, 172 Miss. 394; Mississippi Chancery Practice, Griffith, sec. 567, pages 623-625.
The weight of the evidence as to payment is in favor of appellants' contention denying payment, and non-payment is established.
Mississippi Chancery Practice, Griffith, 186, sec. 189; Jacks v. Bridewell, 51 Miss. 882; Holmes v. Lemon, 15 So. 141; Kyle v. Rhodes, 71 Miss. 487, 15 So. 40; Waller v. Shannon, 53 Miss. 500.
Where the fact to be proved is evidenced by a writing, the original writing is the best evidence, and a copy is not admissible unless the original is lost or its absence is otherwise satisfactorily explained.
Freeland v. McCaled, 3 Miss. 756; 22 C.J., 1018-1019, secs. 1305 and 1306; Baldridge v. Stribling, 101 Miss. 566, 57 So. 658; Dewes v. Bostwick Co., 96 Miss. 253, 50 So. 865; Shannon v. Summers, 86 Miss. 619, 38 So. 345; McCaugh v. Young, 85 Miss. 280, 37 So. 839; Turner v. Thomas, 77 Miss. 864, 28 So. 803; Jelks v. Barrett, 52 Miss. 315; Martion v. Williams, 42 Miss. 210; Adams v. Guice, 30 Miss. 397; Mayson v. Beazley, 27 Miss. 106; Doe v. McCaleb, 3 Miss. 756.
Proof shows age of Millie Rush to have been falsely stated in her application and to have been greatly in excess thereof.
The fact that a certificate of membership is issued to one who is beyond the age limit at which persons can be admitted to the society under its constitution and by laws does not render the contract void where such contract is not prohibited by the society's charter; but such contract is ultra vires where the age limit is fixed by the charter or certificate of incorporation.
45 C.J. 15, par. 14 b; Afro-American Sons Daughters v. Webster, 161 So. 318.
The contract is voided by terms of constitution and certificate because of excessive age and false statement thereof.
The court erred in finding that appellant knew of deceased's excessive age and accepted premiums thereby waiving excessive age.
No question of waiver can arise where the contract is ultra vires.
28 A.L.R. 93; Fraternal Tribunes v. Steele, 114 Ill. App. 194, 215 Ill. 190, 106 A.S.R. 160, 74 N.E. 121; Beggs v. Supreme Council, 146 Ill. App. 168; Sowersby v. Royal League, 159 Ill. App. 626; Sherry v. Women's Catholic Order, 166 Ill. App. 254; Kresin v. Brotherhood of American Yeomen, 217 Ill. App. 448; Tuite v. Supreme Forrest, 193 Mo. App. 619, 187 S.W. 137.
J.H. Price, of Indianola, for appellee.
There is no conflict between the charter, which they say they cannot waive and the policy as the uncontradicted testimony of age was 55 at joining. There is nothing in the constitution and by-laws that this T.J. Huddleston alias "Cousin Tom" could not waive. The constitution itself grants "Cousin Tom" the power to dispense with any provision of the constitution or any by-law or requirement of appellant. He issued the policy to Millie Rush. He received one dollar from her before he issued her a policy. He religiously received a dollar from her every month thereafter up to and including January 1, 1931, agreeable to appellant's admissions in evidence and appellee shows that Millie Rush was not delinquent on this policy at her death.
Nowhere in this record is there a witness to be found who testified that Millie Rush was more than 55 years in 1926, when this insurance policy was issued. Here is positive testimony that 55 was her age. The evidence is competent. It was not even objected to.
Appellant put T.J. Huddleston on the witness stand and by him proved that Millie Barnes came to his office in Yazoo City and plead with him to pay something on said death claim to bring peace in her family; that she (Millie Barnes) knew that Millie Rush was unfinancial and over age. T.J. Huddleston, the custodian, according to this testimony, had the information that Millie Rush was not only unfinancial but also over age for 5 years, 5 months and 17 days before he tendered the dollars he had collected on this policy as he claimed in court November 16, 1936, with interest thereon from the date of Millie Rush's death at the rate of 6% per annum. Of course, Millie Rush testified that she did not give him any such information and that such were not the facts. But taking Huddleston's testimony as being true for argument's sake only, and he froze to this money through this long period knowing all the time she was both unfinancial and over age. During that time (while he was so loaded up with information) the Grand Lodge met five times and it was his duty to report to the Grand Lodge just what he was doing in this case and he swore that he had been exercising the powers and duties imposed on him by the constitution all the while. Anyway, his acts in the premises were appellant's acts. It will be noted that the chancellor did not find Millie Rush over age.
Argued orally by T.H. Campbell, Jr., for appellant, and by J.H. Price, for appellee.
Appellee is the beneficiary under an alleged certificate or policy of life insurance in appellant society. The charter of the society limited its membership and insurance to those not over 60 years of age, and its constitution made a further limitation to those not more than 55 years of age. Appellant declined to pay on the death of the insured, and has defended the suit brought by the beneficiary on the ground, among others, that the insured was not less than 70 years old at the time of the application and issuance of the certificate or policy. On the trial the chancellor held that the insured was over age, but that appellant, with knowledge of the facts, received the premiums and kept them, and is, therefore, bound to pay the policy. The insured stated in her application that her age was 55.
The evidence supports the finding of the chancellor that the insured was more than 55 years of age, and would indicate that she may have been more than 60, at the time of the application. If more than 60, her supposed contract was ultra vires and void. But, if between 55 and 60 and appellant society knew that fact, and thereafter accepted premiums, the society would be held to have waived the constitutional limit and the contract would be good. Afro-American, etc., v. Webster, 172 Miss. 602, 609, 161 So. 318. But that knowledge must be that of an agent of the society empowered to waive, and there is no evidence sufficient to support a decree that any such agent of the society had any such knowledge until after the death. Knowledge by a mere local financial agent is not sufficient. Sovereign Camp, W.O.W., v. Muse, 174 Miss. 533, 540, 163 So. 682. This disposes also of the so-called "Cousin Tom" letter, written before the death.
It is urged by appellee that admitting, for the sake of the argument, that appellant had no knowledge of the over-age previous to the death, the society is bound by way of waiver, because the society has retained all the premiums paid, for more than 5 years after the death, when the fact is confessed by the general agent of the society that he was informed of the over-age within three weeks after the date of the death — and this apparently was the position taken by the chancellor as disclosed by his short opinion. No authority is cited in appellee's brief in support of that contention, and apparently the authorities do not sustain it. See 32 C.J., p. 1352; Aetna Ins. Co. v. Mount, 90 Miss. 642, 44 So. 162, 45 So. 835, 15 L.R.A. (N.S.) 471. We do not rest our conclusion, however, as decision, on what is said in the foregoing sentence; but on the fact that there was another defense made in the case and in good faith, it being strongly supported by the evidence, including the records of the society, that the policy had lapsed about three months before the death by the failure to pay the monthly premiums, in which case no return of the premiums would be due. The chancellor seems to have solved the issue of nonpayment of premiums in favor of appellee, but, nonpayment being a defense strongly made and in good faith, it furnishes sufficient ground to avoid the stated point raised by appellee.
The decree will be reversed and the case remanded, with directions that the court find the amount of all premiums paid, and render a decree for appellee for the amount thereof, with legal interest, but for no further sum.
Reversed and remanded.