Bruton v. Brotherhood of Locomotive Firemen and Engineers

• Decision Date: 20 April 1936
• Docket Number: 32175
• Citation: 167 So. 423,176 Miss. 224
• Court: Mississippi Supreme Court
• Parties: BRUTON v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEERS

167 So. 423

176 Miss. 224

BRUTON v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEERS

No. 32175

Supreme Court of Mississippi

April 20, 1936

Division B

1 INSURANCE.

Member of fraternal benefit society, by failing to pay monthly assessment, ceased to be a member and ceased to be entitled to benefits under certificate.

2 INSURANCE.

Where it was custom of fraternal benefit society on payment of monthly dues to mark on receipt therefor amount due for succeeding month, it was duty of insured member to pay such amount when it became due or, if deemed incorrect, to tender correct amount without any other notice.

3 INSURANCE.

Where rights of beneficiary and liability of fraternal benefit society were fixed by certificate, constitution and by-laws and society was brought into court by service on its local representative, society could rely on its certificate, constitution, and by-laws, notwithstanding it had not constituted insurance commissioner or any other person as its process agent.

HON. J. P. ALEXANDER, Judge.

APPEAL from circuit court of Hinds county HON. J. P. ALEXANDER, Judge.

Action by Mrs. Carrie Bruton against the Brotherhood of Locomotive Firemen and Engineers. From an adverse judgment, plaintiff appeals. Affirmed.

Affirmed.

W. H. Cox, of Jackson, for appellant.

The court erred in giving effect to the by-laws and constitution of the appellee when a copy thereof was never filed with the insurance commissioner of this state as required by law.

Sections 5129, 5131, 5231, 5241, 5242, 5245, 5171, 5260, 5251, Code 1930.

If the appellee be correct in its contention that it is not required by the chapter on fraternal societies to file a copy of its constitution and by-laws with the Department of Insurance, which we do not concede, then it would be required to do so under section 5180, Code of 1930.

The appellant showed, without contradiction, that the appellee had not complied with the laws governing fraternal benefit societies in this state, and that the pretended constitution and by-laws proffered in evidence by the appellee were without force and effect because there had been no legal adoption thereof.

Sovereign Camp, W. O. W., v. Garner, 125 Miss. 8, 87 So. 458.

If the appellee were not amenable to the fraternal benefit laws of this state, as it contends, it must remain amenable to the general insurance laws. Section 5180, Mississippi Code of 1930, formerly appeared as section 2636, Mississippi Code of 1906, and later as section 5102, Hemingway's Missisippi Code.

Supreme Counsel of the Fraternal Mystic Circle v. Turner, 105 Miss. 468, 62 So. 497.

The appellee waived any right to forfeit the policy in suit for nonpayment of the August, 1932, assessment by not notifying insured of the actual amount thereof.

14 R. C. L. 980; 32 C. J. 1303, sec. 534.

A contract of life insurance is not a contract to be renewed from year to year by payment of premiums. The contract is entire, and a failure to pay a premium does not forfeit the policy unless the policy expressly so provides. Forfeitures are looked upon with disfavor.

Stonewall Life Ins. Co. v. Cooke, 165 Miss. 619, 144 So. 217; Owens v. New York Life Ins. Co., 126 Miss. 878, 89 So. 770.

The appellee notified the insured in July, 1932, when he paid his last premium, that the August, 1932, premium in dispute would be seven dollars and thirty-five cents. The appellee now contends that the August, 1932, premium was six dollars and fifteen cents. The appellee requested the court to allow it to amend said plea to show that the August, 1932, assessment was seven dollars and thirty-five cents, but no formal order was entered on the minutes of the court allowing such amendment. Under the laws of this state, said amendment was therefore not effected. It was indispensable that an order be entered on the minutes of the court to have effectd such amendment.

Gill v. Dantzler Lbr. Co., 153 Miss. 559, 121 So. 153; Oliver v. Miles, 144 Miss. 852, 110 So. 666; Sec. 724, Code of 1930; Reed v. Bankers Reserve Life Ins. Co., 192 F. 408; Iowa Life Ins. Co. v. Lewis, 47 L.Ed. 204.

Where the premium is, by the contract, subject to a deduction equal in amount to the dividend to which the insured is entitled, it is the duty of the company to give him such notice of the amount, that he may, in due time, pay or tender the balance of the premium.

Phoenix Ins. Co. v. Doster, 27 L.Ed. 65; 25 Cyc. 828; Insurance Co. v. Eggleston, 96 U.S. 577; 17 A. L. R. 231; Smith v. Union Central Life Ins. Co., 7 Ohio Dec. Reprint 188; Nall v. Provident Sav. Life Assur. Soc., 54 S.W. 109.

Where, by the terms of a policy of insurance, the insured is required to pay one-half of the annual premiums in cash and give a note for the other half, less his dividend or share of the profits, which is to be deducted from the amount for which he is to execute his note, the insurer is under obligation to give the insured notice of the amount which he is required to pay, before it can insist on a forfeiture.

Home L. Ins. Co. v. Pierce, 75 Ill. 426; Eddy v. Phoenix Mutual L. Ins. Co., 65 N.H. 27, 23 Am. St. Rep. 17, 18 A. 83.

A notice of the amount of a dividend is particularly requisite where it has been the uniform practice of the company to give such notice.

Meyer v. Knickerbocker L. Ins. Co., 73 N.Y. 516, 29 Am. Rep. 209, 51 How. Pr. 263; Atty.-Gen. v. Continental L. Ins. Co., 33 Hun. (N. H.) 138; Manhattan Life Ins. Co. v. Smith, 44 Ohio St. 156, 58 Am. Rep. 806, 5 N.E. 417, 9 Ohio Dec. Reprint 583; Nall v. Provident Savings Life Assur. Soc., 54 S.W. 109; Cavanaugh v. Security Trust & Life Ins. Co., 10 Ann. Cas. 680; Manhattan Life v. Smith, 5 N.E. 417; Baxter v. Brooklyn Life Ins., 23 N.E. 1048; Meyer v. Knickerbocker Life Ins. Co., 73 N.Y.S. 516; Knobel v. North American Acc. Ins. Co., 20 L. R. A. (N. S.), 1037.

It is earnestly urged and submitted that the insured was entitled to notice to the exact amount of said August, 1932, premium as a prerequisite to any right of the appellee to have declared a forfeiture of said contract.

Mutual Reserve Life v. Hamlin, 35 L.Ed. 167; 14 R. C. L. 987; 32 C. J. 1307, sec. 544.

J. Morgan Stevens and J. M. Stevens, Jr., both of Jackson, for appellee.

While the defendant brotherhood is an international labor union, which had existed for a long time, its beneficiary department is properly classified as a fraternal benefit society, and in fact meets the statutory definition of a fraternal benefit society, which is one operating on the lodge system with ritualistic form of work and representative form of government. The difference between such an organization and a regular life insurance company is at once manifest.

Royal Arcanum v. Behrend, 247 U.S. 394, 62 L.Ed. 1182, 1 A. L. R. 966; Head v. Providence Ins. Co., 2 Cranch, 127, 2 L.Ed. 229; Supreme Council v. Brashears, 89 Md. 924, 43 A. 866, 73 Am. St. Rep. 124; Hollingsworth v. Supreme Council of Royal Arcanum, 175 N.C. 615, 96 S.E. 81, Ann. Cas. 1918E, 401; K. of P. v. Mims, 241 U.S. 574, 60 L.Ed. 1179; 19 R. C. L. 1191, sec. 12; 5 C. J. 1335; State ex rel. v. Hicks, 70 S.E. 468, 33 L. R. A. (N. S.) 529; Brotherhood of Railway Trainmen v. Barnhill, 108 So. 456, 47 A. L. R. 270.

The brief benefit certificate issued to a member of the brotherhood is incomplete. It does not contain all of the elements of a final and binding contract without reference to the constitution. It provides no premium or assessments on its face or how long it will continue in force and as stated, all the rights and obligations of the parties are determined by the constitution and bylaws and therefore, both parties to this action must look to the constitution for their respective rights and remedies.

The plaintiff has not met the burden of proof and utterly failed to make out any legal or equitable case.

Clement v. Knights of Maccabees of the World, 113 Miss. 392, 74 So. 287; Alton v. Most Worshipful St. John's Grand Lodge, 135 So. 679; Brotherhood of Railroad Trainmen v. Bridges, 164 Miss. 356, 144 So. 554.

The defendant is a fraternal benefit society and as such not only the certificate sued on but the constitution is a part of the contract.

Chapter 206. Laws of 1916; Peterson v. Manhattan Life Ins Co., 244 Ill. 329; Barrows v. Mutual Life Ins. Co., 151 F. 461; Supreme Lodge v. Mims, 241 U.S. 574; Thomas v. Knights of Maccabees, 149 P. 7, 85 Wash. 665, L. R. A. 1916A, 750; Miller v. National Council, 76 P. 799, 69 Kan. 234; Reynolds v. Royal Arcanum, 7 L. R. A. (N. S.) 1154, 78 N.E. 129, 192 Mass. 150; Clarkson v. Supreme Lodge, 82 S.E. 1043, 99 S.C. 134; DeGraw v. I. O. F., 182 Mich. 366, 148 N.W. 703; Holt v. Supreme Lodge, 235 F. 885; Newman v. Supreme Lodge, 70 So. 241, 110 Miss. 371; Supreme Council v. Green, 237 U.S. 531, L. R. A. 1916A, 771; Wineland v. K. O. T. M., 148 Mich. 608, 112 N.W. 696; Supreme Lodge K. of H. v. Bieler, 105 N.E. 244, 53 Ind.App. 550; Fullenweider v. Royal League, 180 Ill. 621, 54 N.E. 485; Champion v. Hannahan. 138 Ill.App. 387; Mock v. Supreme Council R. A., 121 A.D. 474, 106 N.Y.S. 155; Messer v. Grand Lodge. 180 Mass. 321, 62 N.E. 252; Miller v. National Council K. & L. of S.,69 Kan. 234, 76 P. 830; Supreme Ruling Mystic Circle v. Ericson, 131 S.W. 92; Williams v. Supreme Council C. M. B. A., 152 Mich. 1, 115 N.W. 1060; Conner v. Golden Cross, 117 Tenn. 549, 97 S.W. 306; Shepperd v. Bankers' Union, 77 Neb. 85, 108 N.W. 188; Supreme Lodge K. of P. v. Knight, 117 Ind. 489, 3 L. R. A. 409, 20 N.E. 279; Woodmen of the World v. Woods, 34 Colo. 1, 81 P. 261; Barbot v. Mut. Res., etc., Assn., 100 Ga. 681, 28 S.E. 498; Mutual Reserve Fund Life Assn. v. Taylor, 99 Va. 208, 37 S.E. 854; Richmond v. Supreme Lodge, 100 Mo.App. 8; Haydel v. Mutual Reserve Fund Life...