Afro-America Sons & Daughters v. Williams
| Decision Date | 15 November 1937 |
| Docket Number | 32886 |
| Parties | AFRO-AMERICA SONS & DAUGHTERS v. WILLIAMS |
| Court | Mississippi Supreme Court |
Suggestion Of Error Overruled December 13, 1937.
APPEAL from the chancery court of Sunflower county HON. J. L WILLIAMS, Chancellor.
Suit by Effie Williams against the Afro-American Sons & Daughters. From a decree in favor of the plaintiff, the defendant appeals. Decree reversed, and cause remanded, with directions.
Reversed and remanded.
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. Parer, 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 nonpayment 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. 196; 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. 337.
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...
To continue reading
Request your trial