Columbian Mut. Life Ins. Co. v. Gipson
| Citation | 189 So. 799,185 Miss. 890 |
| Decision Date | 12 June 1939 |
| Docket Number | 33719 |
| Court | Mississippi Supreme Court |
| Parties | COLUMBIAN MUT. LIFE INS. CO. v. GIPSON et al |
Suggestion Of Error Overruled July 18, 1939.
APPEAL from circuit court of Smith county HON. E. M. LANE, Judge.
Action by John L. Gipson against the Columbian Mutual Life Insurance Company on an insurance policy. During the pendency of the action the plaintiff died, and the action was revived by his widow Mrs. Bertie Gipson, and his children.
From an adverse judgment, the defendant appeals. Affirmed.
Affirmed.
J Morgan Stevens, J. M. Stevens, Jr., Bob Ray and George R Nobles, all of Jackson, for appellant.
The motion for peremptory instruction requested at the close of the evidence should have been granted. The burden of proof was upon the plaintiffs to show that James L. Gipson was in good standing at the time of his death.
Mr Gipson permitted his membership to lapse and he had no further interest of any kind after December 27, 1933. The fact that he may have become disabled before December 27, 1933, did not relieve him of his obligation to pay the premiums.
New York Life Ins. Co. v. Alexander, 122 Miss. 813, 85 So. 93; Berry v. Lamar Life Ins. Co., 163 Miss. 462, 142 So. 445, 165 Miss. 405, 145 So. 887; New York Life Ins. Co. v. Quin, 171 Miss. 396, 157 So. 902; Mutual Life Ins. Co. v. Hebron, 166. Miss. 145, 146 So. 445; Independent Order of Sons and Daughters of Jacob of America v. Enoch, 108 Miss. 302, 66 So. 774; Mixon v. Sovereign Camp, W. O. W., 155 Miss. 481, 125 So. 413; Brotherhood of Railway Trainmen v. Bridges, 164 Miss. 356, 144 So. 554; Columbian Mutual Life Ins. Co. v. Eaves, 185 So. 557; Independent Order of Sons and Daughters of Jacob of America v. Moncrief, 96 Miss. 419, 50, So. 558.
C. W. Mangum as the original secretary of the local council at Magee and the authorized collection agent, could not waive any of the provisions of the constitution and laws of the society or relieve Mr. Gipson of the burden of making proof of his claim while he was in good standing.
Sec. 5249, Code of 1930; Sovereign Camp W. O. W. v. Valentine, 170 Miss. 707, 155 So. 192; Sovereign Camp W. O. W. v. Hynde, 134 Miss. 705, 99 So. 259; Sovereign Camp W. O. W. v. Muse, 163 So. 682; Sovereign Camp W. O. W. v. Williamson, 164 So. 47; Brotherhood of Railroad Trainmen v. Bridges, 164 Miss. 356, 144 So. 554; Bruton v. Brotherhood of Locomotive Firemen & Engineers, 167 So. 423, 176 Miss. 224; Sovereign Camp W. O. W. v. McClure, 168 So. 611, 176 Miss. 536; Afro-American Sons & Daughters v. Williams, 176 So. 725.
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; 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; Thomas v. Knights of Maccabees, 149 P. 7, 85 Wash. 655, L. R. A. 1916A 750; Supreme Lodge, etc. v. Mims, 241 U.S. 574; Clarkson v. Supreme Lodge, etc., 82 S.E. 1043, 99 S.C. 134; DeGraw v. I. O. 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, 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 Assn., 98 F. 220; Haydel v. Mutual Reserve Fund Life Assn., 104 F. 718; Odd Fellows Benefit Assn. v. Smith, 58 So. 100; National Council of Knights & Ladies of Security v. Smiley, 100 So. 153; Locomotive Engineers Mutual Life & Acc. Ins. Assn. v. Hughes, 77 So. 352; Columbian Mutual Life v. Harrington, 139 Miss. 826, 104 So. 297.
There was no cash surrender or loan value to the certificate.
Mixon v. Sovereign Camp, W. O. W., 155 Miss. 841, 125 So. 113; Independent Order of Sons & Daughters of Jacob of America v. Moncrief, 96 Miss. 419, 50 So. 558.
It is clear that by the non-payment of premiums after December 27, 1933, James L. Gipson was suspended as a member and his beneficiary covenant automatically lapsed. While he was not entitled to notice, the assistant secretary did write him a letter advising him that his covenant would lapse unless he resumed payment of premiums. He did not resume payment of premiums and his beneficiary covenant had no further cash surrender value that could be applied to the payment of his dues and no sort of application was made by him for total disability. He was obligated under the covenant and under the provisions of the constitution and by-laws to keep his dues paid monthly and to keep himself in good standing as a condition precedent to receiving any benefits whatsoever. The bold effort here is to recover on a policy that had been dead for about four years. Plaintiffs cannot bring to life a dead policy under these circumstances.
The only contract that James L. Gipson ever had was a fraternal contract. The amendment to the charter did not create a new corporation but simply changed the charter powers and gave to the Columbian Life Insurance Company the right from that time forward to operate as a mutual company but with the express provision that no rights, duties or obligations of members, as determined by the beneficiary certificates and the constitution and by-laws, would be affected by the change, and all of the elements of the fraternal contracts were continued unaffected by the change.
It is true that after the company, by statutory authority, converted from a fraternal society to a mutual company in August, 1926, it ceased to write fraternal contracts and ceased, in a large measure, to keep up the local lodge meetings, but these local units continued to function as such, and the secretary of the local council, such as Pinewood Council No. 33 of Magee, Mississippi, continued to serve as the authorized collection agent for the group. It is undisputed that C. W. Mangum was the secretary of the local council at Magee prior to the conversion and continued to serve as local authorized collection agent from the conversion. This, in the nature of things, was necessary to enable the company to perpetuate its corporate entity to function both as a fraternal and mutual company. As stated by the Supreme Court of Tennessee, in the case of Garland v. Columbian Mutual Life Ins. Comapny, the fraternal society did not cease to exist but continued as the same corporate entity with added powers and with self-imposed limitations sponsored and set up by the fraternal members themselves. James L. Gipson, as a member of the fraternal group, is estopped to dispute the legal steps taken by the fraternals to amend the charter and to continue their contracts as fraternal contracts unaffected by the amendment. It is plain, therefore, that the contract here sued on was and is a fraternal contract and the rights of Mr. Gipson and his beneficiary and heirs are to be determined by this fraternal contract, and it is also plain that the constitution and by-laws form a part of that contract and are binding upon this fraternal member and all others.
The decision of this court in the Eaves case, 185 So. 557, followed a long line of decisions expressly holding that loss of membership in a fraternal society was a loss of all further claims had or possessed, and also in line with those decisions expressly holding that a fraternal society is authorized by our statute, now appearing as section 5249, Code of 1930, to provide against waivers on the part of local members of lodges, or the lodges themselves.
Brotherhood of Railroad Trainmen v. Bridges, 164 Miss. 366, 144 So. 554; Odd Fellows Benefit Assn. v. Smith, 101 Miss. 332, 58 So. 100; Sovereign Camp W. O. W. v. Hynde, 134 Miss. 705, 99 So. 259; New York Life Ins. Co. v. Alexander, 122 Miss. 813, 85 So. 93; Independent Order of Sons & Daughters of Jacob v. Enoch, 108 Miss. 302, 66 So. 744; Sovereign Camp W. O. W. v. Muse, 163 So. 683; Sovereign Camp W. O. W. v. Williamson, 164 So. 47; Bruton v. Locomotive Firemen & Engineers, 167 So. 423, 176 Miss. 224; Sovereign Camp W. O. W. v. McClure, 176 Miss. 536, 168 So. 611; Afro-American Sons & Daughters v. Williams, 176 So. 725; Mixon v. Sovereign Camp W. O. W., 155 Miss. 841, 125 So. 113; Independent Sons & Daughters of Jacob v. Moncrief, 96 Miss. 491, 50 So. 558; Columbian Mutual Life Ins. Co. v. Harrington, 139 Miss. 826, 104 So. 297; Royal Arcanum v. Green, 59 L.Ed. 1089.
O. B. Triplett, Jr., of Forest, for appellees.
The insured, James L. Gipson, was totally and permanently disabled within the meaning of his policy from October, 1932, until his death.
Columbian Mutual Life Ins. Co. v. Craft, 185 So. 225; New York Life Ins. Co. v. Bain, 152 So. 845, 169 Miss. 271; Broughton v. Mutual Life Ins. Co. of N. Y., 165 So 140; Foglesong v. Modern Brotherhood of America, 97 S.W. 240...
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