Eminent Household of Columbian Woodmen v. Payne

• Decision Date: 09 November 1920
• Docket Number: 8 Div. 639
• Citation: 88 So. 454,18 Ala.App. 23
• Parties: EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. PAYNE.
• Court: Alabama Court of Appeals

88 So. 454

18 Ala.App. 23

EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. PAYNE.

8 Div. 639

Court of Appeals of Alabama

November 9, 1920

Appeal from Circuit Court, Madison County; Robt. C. Brickell, Judge.

Action by S.A. Payne against the Eminent Household of Columbian Woodmen, as beneficiary under a life certificate issued to Miller A.F. Payne. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

Cooper & Cooper, of Huntsville, and John R. Tyson, of Montgomery for appellant.

R.E Smith and Spragins & Speake, all of Huntsville, for appellee.

MERRITT J.

This is an action commenced by the appellee against the appellant, to recover the amount of a benefit certificate issued by the appellant upon the life of the appellee's son, who died on February 9, 1917, she being named as beneficiary therein.

The first 21 assignments of error relate to the ruling of the trial court on the demurrer to appellant's plea in abatement. The appellant sought to abate the action on the ground that the constitution and by-laws of the appellant prohibited the member of the order, or any beneficiary, from instituting legal proceedings of any kind until the matter in controversy had been first submitted to the order for decision, and from which decision a right of appeal was granted to the executive committee of the order, and from the decision of this committee an appeal was authorized to the Eminent Council, and from its finding to the Eminent Household.

There is a clear and well-defined destinction between the obligation to pursue the method of procedure prescribed by an order or society like the appellant, resting upon one who presents the question of discipline, and such obligation on the part of one who asserts a claim to money due upon a contract. In matters of discipline or policy or doctrine of the society, the member must resort to the plan of procedure provided by his society, including the remedy by appeal, before invoking the power of the court. But the rule is otherwise where a member claims money due from the society on its contract, or where the beneficiary of the deceased member claims money due from the society on its contract of insurance. In the latter case the right to resort to the courts to coerce payment is not abridged by the right of appeal from a lower to a higher tribunal of the society as conferred by its laws and rules. Our government furnishes courts of justice, and they are freely opened to those who seek money due them upon a contract.

Conceding that the constitution and by-laws of the appellant are a part of the contract between the parties, and the general rule that the law permits great freedom of action in making contracts, still there are some well-known and very wholesome restrictions placed upon that right by legislation, by public policy, and by the nature of things. The law, and not the contract, prescribes the remedy, and parties have no more right to enter into stipulations fettering their rights to resort to the courts for their remedy in a given case than they have to create a remedy prohibited by law. In such cases, the law will not interfere, but it will leave the parties to their own good pleasure whether they will or will not keep such agreement. Home Insurance Co. v. Morse, 20 Wall. 445, 22 L.Ed. 365; Williams v. Branning Manufacturing Co., 154 N.C. 205, 70 S.E. 290, 47 L.R.A. (N.S.) 337; People v. Women's Catholic Order of Foresters, 162 Ill. 78, 44 N.E. 401; Supreme Lodge Order of Mutual Protection v. Meister, 204 Ill. 527, 68 N.E. 454.

There was no error in the ruling of the court below in sustaining the demurrer to the plea in abatement.

The appellant interposed pleas 1, 2, 3, 4, and 5. The first plea was the general issue. The second plea seeks to defend on the ground that it was stipulated in the application for membership that the insured had not been drunk for two years, and that this stipulation was false, and the insured had in fact been drunk on a number of occasions prior to the making of his application. The third plea sets up a provision in the application wherein the insured stipulated that he was temperate in his habits, and alleges that insured was not temperate in his habits prior to the making of his application. It is not averred in the second plea that the insured had been drunk within two years preceding his application, nor is it averred in the third plea that the insured was intemperate in his habits at the time of making his application. Neither is it averred in either pleas 2 or 3 that the alleged misrepresentation was made with actual intent to deceive, or that the risk was thereby increased. Code 1907, § 4572; Mass. Mut. Ins. Co. v. Crenshaw, 186 Ala. 460, 65 So. 65; Metropolitan Life Ins. Co. v. Goodman, 196 Ala. 304, 71 So. 409.

The fourth plea alleges that the insured stipulated and agreed that he would abide by and be bound by the constitution and by-laws of the defendant, and that, in violation of the constitution of the defendant, the insured became intemperate in the use of liquor. It is not averred that the contract of insurance provided that the insured should not become intemperate in the use of liquor, and the averment that the insured...